HARVARD  UNIVERSITY 


GRADUATE  SCHOOL 
OF  BUSINESS 
ADMINISTRATION 


Digitized  by  the  Internet  Archive 
in  2016  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/merchantsshipmasOOsawy 


THE  MERCHANT’S 


AND 


SHIPMASTER’S  GUIDE, 

IN  RELATION  TO  THEIR 

RIGHTS,  DUTIES  AND  LIABILITIES, 


UNDER  THE  EXISTING  COMMERCIAL  REGULATIONS  OF  THE  UNITED 
STATES,  AS  ESTABLISHED  BY  STATUTE,  AND  ACCORDING 
TO  JUDICIAL  DECISIONS  IN  THIS,  AND  OTHER 
COUNTRIES,  ON  COMMERCIAL  LAW. 


BY  FREDERIC  W.  SAWYER. 


BOSTON: 

PUBLISHED  BY  BENJAMIN  LOSING  cc  CO. 

No.  122  Stato  Street. 

1 840. 


Entered,  according  to  an  Act  of  Congress,  in  the  year  1840,  by 
FREDERIC  W.  SAWYER, 

in  the  Clerk’s  Office  of  the  District  Court  of  MaitacboMtU 


/V/SS  ***** 


Sr 


\ 


JUN  7 1333  WCH 


\ CO 


PREFACE. 


// 


This  work  is  designed  to  meet,  what  the  author  believes 
to  be  the  actual  and  existing  wants  of  the  mercantile  com- 
munity. A work  of  this  kind  seems  to  be  not  only  proper 
but  necessary.  The  statutes  and  judicial  decisions  deter- 
mining the  rights,  duties,  and  liabilities  of  the  merchant 
and  ship-master,  have  never  before  been  brought  together 
and  methodically  arranged  in  a work  expressly  intended  for 
their  use.  They  have  hitherto  existed  only  in  works  intend- 
ed for  the  library  of  the  professional  man.  This  has  been 
compiled,  with  the  exclusive  view  to  furnish  a practical  and 
useful  work  for  the  counting  room  and  the  ship’s  cabin. 
In  it,  it  is  intended  that  the  merchant  and  mariner  shall 
find  a plain,  methodical,  and  comprehensive  view  of  the 
principal  duties  which  devolve  upon  them  in  their  re- 
spective situations.  These  duties  are  by  no  means  few  or 
unimportant.  Commercial  transactions,  coming  as  they 
do,  in  direct  contact  with  the  revenue  laws  of  the  country, 
are  necessarily  subjected  to  numerous  special  statutes  and 
regulations,  which  must  be  regarded,  or  fines  and  penal- 
ties ensue.  The  whole  period  of  the  voyage,  from  its 


V 


PREFACE.  **?|J 


commencement  to  its  termination,  is  one  continued  series 
of  duties  and  liabilities,  calling  for  a clear  and  precise 
knowledge  of  commercial  law.  In  this  volume  the  several 
statutes  regulating  the  shipping  interests  of  this  country 
are,  in  a great  measure,  relieved  of  their  almost  unintelli- 
gible phraseology,  and  methodically  arranged  under  appro- 
priate heads.  The  masters’  and  merchants’  rights  and 
duties,  as  established  by  commercial  law,  are  here  brought 
together,  and,  as  the  author  believes,  so  arranged  as  to  be 

t 

susceptible  of  rendering  very  essential  service  to  them. 

Commercial  transactions  have  always  presented  fruitful 
sources  of  litigation.  This  has  arisen  not  entirely  from 
the  complexity  of  commercial  affairs.  Much  of  it  is  attrib- 
utable to  the  difficulty  of  procuring  advice,  when  most 
needed,  by  those  having  charge  of  such  adventures.  Most 
men,  when  involved  in  new  and  unexpected  relations,  have, 
usually,  the  power  to  call  to  their  aid  the  assistance  of 
competent  advisers.  But  the  ship-master  is  not  thus  situ- 
ated. The  very  time  that  he  most  needs  counsel,  is  gen- 
erally, of  all  others,  the  time  when  it  is  impossible  for  him 
to  obtain  it.  It  seems,  then,  desirable,  that  he  should  have 
some  book  at  hand  to  afford  him  useful  advice,  when  over- 
taken by  disaster. 

Another  consideration  why  the  ship-master  should  be 
possessed  of  a work  of  this  character  is,  that  they,  more 
than  any  other  class,  have  been  made  the  subjects  of  spe- 
cial enactments.  To  very  many  of  their  acts  and  omis- 
sions, which,  in  themselves  considered,  are  light  and  unirn- 


PREFACE. 


V 


portant,  very  grave  and  severe  penalties  have  been  affixed. 
These  penalties,  in  most  cases,  are  not  only  visited  upon 
the  master,  but  often  become  a charge  upon  the  owner. 
His  %duty,  then,  not  only  to  himself,  but  to  his  owners,  de- 
mands of  him  some  acquaintance  with  the  provisions  and 
requirements  of  these  statutes. 

The  station  which  the  ship-master  holds,  is  one  of  great 
responsibility  and  confidence.  To  him  is  confided,  in  a 
great  degree,  not  only  the  interests  and  fortunes  of  his  em- 
ployers, but  the  well-being  and  lives  of  his  crew.  From 
the  nature  of  his  situation,  and  the  exposure  of  the  prop- 
erty committed  to  his  charge,  he  has  been  invested  with 
great  authority.  But  in  proportion  to  his  power,  is  his 
legal  accountability.  Nothing,  then,  concerns  him  more 
than  to  know  what  the  extent  of  his  authority  is,  and  how 
far  the  law  sustains  him  in  its  exercise. 

The  author  lias  carefully  endeavored  to  make  this  work 
not  only  as  full  and  particular  as  possible  upon  the  various 
duties  and  liabilities  of  the  merchant  and  mariner,  but  also 
to  make  it,  at  the  same  time,  in  all  respects,  a safe  and  ac- 
curate guide.  The  principles  here  laid  down,  have,  in 
almost  every  case,  been  drawn  from  sources  of  undoubted 
authority.  Where  a principle  seemed  of  doubtful  author- 
ity, or  become  in  any  way  unsettled,  it  has  generally  been 
omitted.  It  seemed  better  that  a chasm  should  be  left  in 
the  chain  of  directions,  than  that  uncertain  and  erroneous 
advice  should  be  inserted. 

F.  W.  S. 

Boston,  Jan.  1,  1840. 


o r H A O P 
j <*  b o 


CONTENTS 


CHAPTER  I. 

Pag*.. 

Of  the  title  to  ships,  ....  - 13 

CHAPTER  II. 

Registry,  enrolment  and  license  of  ships. 

Of  the  registry  of  ships,  ....  16 

Of  where  the  ship  must  be  registered,  ...  18 

Of  transfer  or  surrender  of  register,  ...  20 

Of  the  enrolment  and  license  of  ships,  21 

CHAPTER  III. 

Documents  necessary  for  American  vessels,  - 24 

CHAPTER  IV. 

Foreign  trade. 

Of  clearance  of  vessels,  .....  29 

Of  arrival  of  vessels,  - - - - 30 

Of  manifest  of  cargo,  .....  34 

Of  manifest  of  passengers,  ....  30 

Of  time  for  unlading  vessels,  - - - -31 

Of  ship  stores,  ......  31 

Of  smuggling,  ------  32 

Of  the  passport,  .....  32 

Of  account  of  seamen,  33 

Of  importation  of  goods,  - - - - .33 

Of  delivering  cargo  in  different  districts,  36 

Of  certificate  from  collector,  ....  36 

Of  spirits,  wines,  and  teas,  - - - 37 

Of  delivery  of  letters,  .....  38 

Of  neglect  to  enter,  .....  38 

Regulations  for  clearing  vessels,  ...  41 


CONTENTS. 


viii 

CHAPTER  V. 

Page. 

Coasting  trade,  regulations  concerning,  - - 42 

Of  change  of  master,  -----  42 

Of  vessels  without  license,  forfeited,  ...  43 

Of  the  license,  when  it  expires  at  sea,  43 

Of  alien  vessels,  cannot  sail  coastwise,  except,  - 43 

Of  change  of  registry  to  enrolment,  44 

Of  the  bond  when  license  is  granted,  - 44 

Of  change  of  master,  must  be  reported,  45 

Of  seamen,  master  must  report  a list  of  them,  - 46 

Of  surrender  of  the  license,  46 

Of  right  to  trade  coastwise  without  entering  or  clearing,  47 

Of  manifest  of  cargo,  when  spirits,  &c.  is  on  board,  - 47 

Of  the  three  great  coasting  districts,  ...  48 

Of  the  general  manifest  of  the  cargo,  - - - 49 

Of  master’s  duty  when  he  makes  a port  of  necessity,  - 51 

Of  fishing  vessels,  ....  - 52 

Of  vessels  bound  to  a port  within  the  same  or  an  adjoining 

state,  .......  52 

Of  loss  of  the  manifest,  ....  53 

Of  alien  vessels,  - - - - - - 54 

CHAPTER  VI. 

Vessels  engaged  in  the  fishery,  ...  55 

CHAPTER  VII. 

Ship-owners. 

Who  are  liable  as  owners,  - - - . - 62 

Of  the  liability  of  the  mortgagee,  ...  62 

01  the  liability  of  the  charterer,  63 

Of  the  rights  and  liabilities  of  part  owners,  - - 64 

Of  the  employment  of  the  ship  by  the  part  owners,  - 66 

CHAPTER  VIII. 

Ship’s  husband,  .....  68 

Of  who  may  be  ship’s  husband,  ....  68 

Of  his  appointment,  .....  69 

Of  the  duties  of  a ship’s  husband,  - - 69 

Of  the  power  of  a ship’s  husband,  . - - 70 


CONTENTS.  IX 

CHAPTER  IX. 

Page. 

Agents. 

Of  the  duty  of  agents  to  procure  insurance.  - - 72 

When  they  must  insure,  ....  73 

■ Agent  bound  to  use  due  diligence,  . - - - 74 

Of  the  authority  of  agents,  ....  75 

CHAPTER  X. 

Of  factors,  or  consignees,  ....  77 

Of  the  lien  of  the  factor,  - - - 78,  82 

Of  consignees  commissions,  ...  - 79 

May  sell  the  goods  of  his  principal  in  his  own  name,  80 

Must  be  governed  by  instructions,  80 

May  sell  on  credit,  - - - - - 81 

CHAPTER  XI. 

Ship-masters,  ......  83 

Of  the  appointment  of  the  master,  ...  86 

Of  the  master’s  authority  over  seamen,  89 

Of  the  master’s  authority  respecting  the  employment  of 

the  ship,  ......  92 

Of  the  master’s  authority  to  sell  the  ship,  95 

Of  the  master’s  authority  to  repair  the  ship  and  furnish 

supplies,  ......  103 

Of  the  master’s  authority  to  hypothecate  the  ship,  - 106 

Of  the  master’s  authority  to  hypothecate  the  cargo,  - 107 

Of  tue  owner  and  master’s  relation  to  the  cargo,  111 

Of  the  charter  party,  .....  Ill 

Of  the  duty  of  the  owner,  ....  112 

Of  the  duty  of  the  charterer,  - - - - 114 

Of  the  bill  of  lading,  .....  115 

Of  the  carriage  of  the  goods,  ....  117 

Of  the  delivery  of  the  goods  at  the  port  of  destination,  124 

Of  the  responsibility  of  the  ship-owner,  . - 129 

Of  the  master’s  liability  for  bad  stowage,  • - - 131 

Of  the  duties  of  the  shipper,  ....  131 

Of-the  payment  of  freight,  ....  132 

Of  the  duty  of  the  master  to  employ  a pilot,  - . 137 

Of  the  master’s  duty  to  protest  in  case  of  disaster,  • 139 


X 


APPENDIX. 


Page. 


Of  the  master’s  duty  respecting  a collision  of  ships,  - HO 

Of  the  barratry  of  the  master,  - 237 

Of  deviation  by  the  master,  - 230 

CHAPTER  XII. 

Of  the  mate,  - - . . . h2 

CHAPTER  XIII. 

Of  seamen,  145 

Of  laws  for  the  protection  of  seamen,  - - . 147 

Of  laws  for  the  relief  of  seamen  in  American  ports,  - 148 

Of  laws  for  the  relief  of  American  seamen  in  foreign  ports,  149 

Of  medicine  and  medical  advice  and  attendance,  - - 151 

Of  provisions  and  water,  - 154 

When  mariners  may  refuse  to  proceed  on  the  voyage,  • 154 

Of  seamen’s  wages,  .....  457 

Of  their  liability  to  forfeit  wages,  ....  1 61 

Of  their  liability  to  lose  wages,  - . . 167 

Of  their  duty  in  case  of  disaster,  ....  169 

Of  state  laws  relating  to  seamen,  - - - 172 

Of  embezzlemeut  by  the  ship’s  crew,  - - - 174 


CHAPTER  XIV. 

Crimes. 

Of  crimes  committed  on  the  high  seas, 

Of  piracy,  - 

CHAPTER  XV. 

Marine  insurance, 

Of  an  agreement  for  insurance, 

Of  the  policy  and  its  usual  stipulations, 

Of  the  implied  conditions  of  the  policy, 
Who  may  insure  and  procure  insurance, 
Of  the  description  of  the  assured, 

Of  valued  policies, 

Of  open  policies, 

Of  representation  and  concealment, 

Of  facts  that  must  be  disclosed, 

Of  express  warranties  and  conditions, 


176 

180 


182 

182 

183 

186 

187 

1S7 

1S9 

194 

197 

199 

201 


. APPENDIX.  XI 

Pago. 

Of  the  time  when  the  risk  commences  and  when  it  ends,  203 
Of  the  risks  insured  against,  ....  206 

Of  the  description  of  the  subject,  ....  207 

Of  the  insurable  interest,  ....  209 

Of  the  risks  that  may  be  insured  against,  • • - 212 

Of  what  is  a loss  within  the  policy,  - - - 214 

Of  partial  loss  and  adjustment,  ....  216 

Of  maritime  loans,  .....  224 

Of  deviation  by  the  master,  ....  230 

Of  barratry,  ......  237 

Of  total  loss  and  abandonment,  ....  239 

Of  constructive  total  loss,  ....  243 

Of  the  wreck  or  strandisg  of  the  ship,  . - - 246 

Of  the  value  of  the  subject  insured,  - - - 247 

Of  the  amount  of  the  damages,  ....  248 

Of  the  stranding,  .....  251 

Of  the  abandonment  of  the  cargo,  ....  257 

Of  the  valuation  of  the  cargo,  ....  259 

Of  salvag3,  .......  260 

Of  general  average,  .....  264 

Of  wages  and  provisions,  .....  267 

Of  other  necessary  expenses,  ....  270 

Of  voluntary  stranding,  .....  272 

Of  the  adjustment  of  general  average,  - . . 273 

CHAPTER  XVI. 

Marine  Hospitals,  ......  279 


APPENDIX. 

Legal  forms. 


Notice  of  abandonment,  ....  283 

Assignment  of  a policy  of  insurance,  - - - 283 

Assignment  of  a sailor’s  wages,  - - . 284 

Letter  of  Attorney  from  a sailor  to  his  wife  to  receive  his 

wages,  285 

Assignment  of  money  due  for  freight  of  a ship,  . 285 

Another  form,  ......  286 

Agreement  for  the  freight  of  a ship,  - - - 286 


XI  l 


APPENDIX. 


Page. 


Form  of  a bottomry  bond,  ....  - 287 

Form  of  a bottomry  bill,  ....  289 

Form  of  an  instrument  of  hypothecation  of  ship  and  cargo,  291 

Form  of  a respondentia  bond,  ....  293 

Bill  of  exchange,  - - - - - 294 

A set  of  bills,  ......  295 

Form  of  manifest  of  cargo,  ....  295 

Form  of  manifest  of  passengers,  ....  296 

Form  of  bill  of  sale  of  an  enrolled  ship,  - - 297 

Form  of  a charter  party,  ....  - 298 

Form  of  a shipping  paper,  . - - - 299 

Form  of  a bill  of  sale  of  a registered  ship,  - - - 303 

Form  of  Protest,  .....  304 


GUIDE 

TO 

SHIP  OWNERS  AND  MASTERS. 


CHAPTER  I. 

OF  THE  TITLE  TO  SHIPS. 

The  bill  of  sale  is  the  proper  evidence  of  title 
to  a ship.  This  is  the  muniment  of  title  which 
the  maritime  courts  of  all  nations  look  for,  and  in 
ordinary  practice  require.*  In  the  admiralty  courts 
a document  of  sale  would  seem  to  be  considered 
indispensably  necessary  to  convey  the  title. f It 
has,  however,  been  decided  in  the  common  law 
courts  of  Massachusetts  and  New  York,  that  a ves- 
sel may  pass  by  delivery,  the  same  as  any  other 
chattel,  without  any  instrument  in  writing. J 

In  the  bill  of  sale,  the  register  must  be  recited 
at  length ; as  without  it  the  vessel  is  incapable  of 
being  registered  anew.$ 

*5  Rob.  Adm.  R.  155.  fl  Mason,  139.  f 8 Pick.  E.  89.  7 
John.  R.  308.  § Act  March  2d,  1803,  See  3. 

2 


14 


TITLE  OF  SHIPS. 


The  mere  neglect  to  transfer  the  register,  upon 
the  sale  of  the  ship,  does  not  defeat  the  sale,  it 
only  deprives  her  of  the  rights  of  an  American 
vessel.* 

To  complete  the  title  of  the  purchaser  and  make 
it  perfect,  possession  of  the  vessel  should  accom- 
pany the  bill  of  sale.  This  is  where  the  vessel  is 
in  port  and  in  a situation  for  possession  to  be  deliv- 
ered. If  the  buyer,  under  such  circumstances  neg- 
lects to  take  possession  himself,  but  suffers  the 
seller  to  remain  in  possession,  and  act  as  owner, 
and  the  seller  should  become  bankrupt,  the  proper- 
ty would  be  liable  to  the  creditors  of  the  vendor 
without  notice. 

The  same  rule  exists  in  the  case  of  the  mort- 
gage of  a ship.  Possession  must  accompany  the 
"bill  of  sale.f 

A bill  of  sale  of  a ship  at  sea  gives  the  purchaser 
a perfect  title,  provided  he  uses  all  due  diligence  to 
take  possession  of  her  after  her  arrival.  If  he  neg- 
lects to  take  such  possession  within  a reasonable 
time,  the  presumption  of  law  is  that  the  sale  was 
collusive  and  fraudulent,  and  the  ship  will  be  held 
liable  for  the  debts  of  the  vendor.  J 

The  vendee  of  a ship  at  sea,  however,  is  not 
bound  to  follow  her  from  port  to  port  in  order  to 
take  possession ; but  he  may  reasonably  wait  her 
return  to  the  port  where  she  belongs ; and  the  sale 


*5  Mass.  42. 


f 6 Mass.  422. 


} 9 Pick.  4. 


TITLE  OF  SHIPS. 


15 


will  be  good  against  creditors  who  shall  attach  her 
at  any  other  place  before  her  return.* 

The  mortgagee  of  a ship  at  sea  must  take  pos- 
session, immediately  on  her  arrival  in  port,  in  the 
same  manner  as  is  provided  for  the  sale  of  a ship 
similarly  situated,  f 

The  buyer  of  a ship  at  sea  takes  subject  to  all 
incumbrances,  and  to  all  lawful  contracts  made  by 
the  master,  respecting  the  employment  and  hy- 
pothecation of  the  ship  prior  to  notice  of  the  trans- 
fer. % 

Sometimes  vessels  are  sold  by  their  masters,  as 
unfit  for  service.  A title  derived  through  the 
master,  by  virtue  of  a sale  by  him,  is  good  or  not 
just  as  it  may  afterwards  appear,  whether  or  not  the 
sale  was  justified  by  the  circumstances.  It  follows, 
then,  that  the  title  thus  acquired  is  of  the  lowest 
and  most  unstable  description. 

#18  Mass.  Rep.  389.  fl5  Mass.  Rep.  477. 

1 9 Pick  4.  Kent,  Vol.  3.  133. 


16 


REGISTRY  OF  SHIPS. 


CHAPTER  II. 

REGISTRY,  ENROLLMENT  AND  LICENSE  OF  SHIPS. 

Of  the  Registry  of  Ships. 

One  of  the  first  acts  of  the  American  Congress, 
after  the  adoption  of  the  constitution,  was  to  confer 
peculiar  privileges  upon  ships  built  and  owned  by 
our  own  citizens.  For  this  purpose,  various  acts 
for  the  Registry,  Enrollment  and  License  of  vessels 
was  passed,  having  for  their  object  the  encourage- 
ment of  our  own  trade,  navigation  and  ship-build- 
ing, by  granting  peculiar  or  exclusive  privileges  of 
trade  to  the  flag  of  the  United  States,  and  by  pro- 
hibiting the  communication  of  those  immunities 
to  the  shipping  and  mariners  of  other  countries. 

No  ships  or  vessels  are  absolutely  required  to  be 
registered  by  our  laws.  But,  if  not  registered, 
they  lose  the  privileges  aud  benefits  of  ships  of 
the  United  States,  and  are  deemed  foreign  ships 
or  vessels.* 

Ships  and  vessels  found  in  the  coasting  trade  or 
fisheries,  without  being  registered  or  licensed,  with 
domestic  goods  on  board,  must  pay  foreign  tonnage 
duties ; and  if  with  foreign  goods  on  board  are 
liable  to  forfeiture .f 

* Note  by  Story,  Abbott,  p.  32.  f Act  1793,  Ch.  52,  Sec.  6- 


REGISTRY  OF  SHIPS. 


17 


Foreign  ships  are  prohibited  from  carrying  on 
the  coasting  trade  from  one  port  in  the  United 
States  to  another.* 

The  shipping  which  enters  our  ports  may  be 
divided  into  five  classes  : — 

1.  Ships  which  are  entitled  to  he  registered ; 
which  must  be  built  within  the  United  States  and 
wholly  owned  by  citizens,  and  employed  in  foreign 
trade. 

2.  Ships  which  are  entitled  to  be  enrolled  and 
licensed , and  which  are  built  and  owned  in  like 
manner,  and  are  employed  in  the  coasting  trade 
and  Fisheries. 

Ships  thus  registered,  and  enrolled  and  licensed 
are  alone  denominated  and  deemed  “ vessels  of  the 
United  States  entitled  to  the  benefits  and  privileges 
appertaining  to  such  ships,”  and  they  continue  to 
enjoy  the  privileges  of  ships  of  the  United  States 
no  longer  than  they  continue  to  be  wholly  owned , 
and  commanded  by  a citizen  or  citizens-! 

3.  Ships  built  in  the  United  States,  but  owned 
wholly  or  partly  by  foreigners,  which  are  entitled 
to  be  recorded.  Recorded  vessels  pay  a lower  ton- 
nage duty  than  foreign  vessels. 

4.  Ships  built  out  of  the  United  States,  but 
owned  by  citizens,  which  are  entitled  to  a certifi- 
cate of  ownership. 

* Act  1817.  Ch.  204. 

t Act  1792,  ch.  45.  — Act  1793,  ch.  52,  Sec.  1 & 2. 

2* 


18 


REGISTRY  OF  SHIPS. 


5.  Ships  built  out  of  the  United  States  and  own- 
ed by  foreigners,  which  are  deemed  alien  vessels  to 
all  intents  and  purposes.* 

Vessels  engaged  in  the  whale  fishery  must  be 
enrolled  and  licensed  to  entitle  them  to  be  deemed 
United  States  ships. f 

No  vessel  is  entitled  to  be  registered,  or  if  regis- 
tered to  the  benefits  thereof,  if  owned  in  whole  or 
in  part  by  any  citizen  who  usually  resides  in  a for- 
eign country,  during  such  residence,  unless  such 
citizen  be  in  the  capacity  of  a Consul  of  the  Uni- 
ted States,  or  an  agent  for,  and  a partner  in  some 
house  of  trade,  or  copartnership  consisting  of  citi- 
zens wholly  carrying  on  trade  within  the  said 
States. 

Where  registered.  The  ship  must  be  registered 
by  the  Collector  of  the  port  where  she  belongs,  or 
in  which  she  may  happen  to  be,  and  founded  on 
the  oath  of  one  of  the  owners,  stating  the  time  and 
place  where  she  was  built,  who  are  the  owners  and 
master,  and  that  they  are  citizens  of  the  United 
States. 

Previous  to  the  registry,  a certificate  of  survey 
must  be  produced,  and  security  given  that  the  cer- 
tificate of  such  Registry  shall  be  solely  used  for 
the  ship,  and  shall  not  be  sold,  lent,  or  otherwise 
disposed  of. 

In  case  a new  ship  is  to  be  registered,  it  is  neces- 


Notes  on  Abbot  by  Story,  p.  29. 


t 3.  Sumner,  * * * 


REGISTRY  OF  SHIPS. 


19 


sary  to  produce  a certificate  under  the  hand  of  the 
master  carpenter,  under  whose  direction  she  was 
built,  specifying  the  place  where,  and  the  time 
when,  and  the  person  for  whom  built,  and  describ- 
ing her  built,  number  of  decks,  and  masts,  length, 
breadth,  depth,  tonnage,  and  such  other  circum- 
stances as  are  usually  descriptive  of  the  identity  of 
a ship. 

Such  a certificate  authorizes  the  removal  of  a 
new  ship  in  ballast  from  the  district  where  she  is 
built  to  another  district,  in  the  same  or  an  adjoin- 
ing State,  to  where  the  owner  resides.* 

If  the  vessel,  or  any  interest  therein,  be  sold  to 
any  foreigner,  and  the  vessel  be  within  the  United 
States,  the  certificate  of  the  registry  must,  within 
seven  days  after  the  sale  be  given  up  to  the  collec- 
tor of  the  district,  and  if  the  sale  is  made  when 
the  vessel  is  abroad,  or  at  sea,  it  must  be  delivered 
up  within  eight  days  after  the  master’s  arrival  in 
the  United  States. f 

When  a vessel  is  sold , in  whole,  or  in  part,  to  a 
citizen  of  the  United  States,  or  altered  in  form  or 
burthen , she  must  be  registered  anew , and  her  for- 
mer certificate  of  registry  delivered  up.  otherwise  she 
will  cease  to  be  deemed  a vessel  of  the  United 
States,  or  entitled  to  any  of  the  privileges  of  one. 

Upon  every  change  of  master,  the  owner  must 
report  such  change  to  the  collector,  and  have  a 

* Act  1792,  ch.  45,  Sec.  8.  f Act  31,  Dec.  1792,  Sec.  7 & 16. 


20 


REGISTRY  OF  SHIPS. 


memorandum  of  such  change  endorsed  upon  the 
certificate  of  registry. 

If  a registered  ship  is  transfered  to  a foreigner, 
by  way  of  trust,  confidence  or  otherwise,  the  sale 
or  transfer  must  be  reported  to  the  Custom  House 
and  the  certificate  of  registry  given  up.  otherwise 
the  ship  will  be  forfeited. 

But  if  the  ship  be  owned  in  parts,  the  shares  of 
the  owners,  who  are  conusant  of  the  sale,  or  trans- 
fer, only,  are  forfeited. 

Oath  taken , when  register  is  granted.  The 
oath  that  is  taken  when  a ship’s  register  is  granted, 
relates  entirely  to  the  legal  title,  and  does  not  re- 
quire the  applicant,  who  holds  the  hill  of  sale,  to 
disclose  the  name  or  names  of  those  who  have  an 
equitable  interest  only  in  the  property.  The  deni- 
al that  any  foreigner  is  directly  or  indirectly  inter- 
ested therein,  is  sufficient. 

Hence  a mortgagee  may  take  out  a register  in 
his  own  name,  notwithstanding  the  equity  of  the 
mortgagor.* 

If  there  be  two  or  more  owners,  the  oath  may 
be  taken  by  one  of  them,  but  the  remaining,  who 
are  resident  within  the  United  States,  must  trans- 
mit to  the  collector,  who  grants  the  certificate  of 
registry,  a like  oath  or  affirmation  within  ninety 
days  after  the  same  is  granted,  or  the  certificate  of 
registry  is  forfeited  and  void.  The  oath  may  be 


# 1 Mason,  R.  360. 


REGISTRY  OF  SHIPS. 


21 


taken  before  the  same,  or  any  other  collector,  or  a 
Judge  of  the  Supreme  or  District  Court  of  the 
United  States,  or  of  a superior  Court  of  Original 
Jurisdiction  in  any  of  the  States. 

When  a ship  is  registered  in  a collection  district 
other  than  that  to  which  she  belongs,  the  certifi- 
cate of  registry  must  be  given  up  to  the  collector  of 
the  port  to  which  she  belongs,  and  a new  certifi- 
cate taken  out  upon  her  first  arrival  within  the  last 
named  district.  If  the  certificate  be  not  so  deliv- 
ered up,  it  becomes  void,  and  the  owner  and  master 
incur  the  penalty  of  $100. 

When  the  register  of  a ship  is  given  up  to  the 
collector  of  the  port  where  it  was  granted,  the 
bond  given  at  the  time  of  granting  it  is  to  be  can- 
celled. If  given  up  to  any  other  collector,  he  is  to 
give  a receipt,  acknowledging  the  delivery;  and 
upon  this  receipt  being  produced  to  the  collector, 
who  granted  the  register,  he  is  to  caucel  the  bond.* 

The  name  of  every  registered  ship,  and  the  port 
to  which  she  belongs,  must  be  painted  on  her 
stern,  on  a black  ground,  in  white  letters  of  not  less 
than  three  inches  in  length,  under  the  penalty  of 
50  dollars.f 

Of  the  Enrollment  and  License  of  Ships. 

Vessels  not  employed  in  the  Foreign  Trade  must 
be  enrolled  and  licensed , to  entitle  them  to  the 


*Act  1792,  ch.  45,  Sec.  18. 


f Ibid,  ch.  35,  See.  3. 


22 


ENROLLMENT  AND  LICENSE  OF  SHIPS. 


privileges  of  vessels  of  the  United  States.  For  that 
purpose  they  must  possess  the  same  qualifications, 
and  the  same  requisites  must  be  complied  with,  as 
are  made  necessary  for  registering  ships;  and  the 
ships  enrolled,  with  the  master  and  owner,  are  sub- 
ject to  the  same  regulations  as  are  in  those  respects 
provided  for  registered  vessels. 

Any  vessel  may  be  enrolled  and  licensed,  that 
may  be  registered,  upon  the  registry  being  given 
up;  and  any  vessel  that  may  be  enrolled  may  be 
registered  upon  the  enrollment  and  license  being 
given  up.# 

If  the  vessel  he  under  twenty  tons,  she  need  not 
be  enrolled  and  licensed  ; but  it  will  be  sufficient 
if  she  has  a license  only.-f 

Enrollment,  however,  is  not  of  itself  sufficient 
for  any  ship  of  a greater  tonnage  ; but  the  ship 
must  moreover  have  a license  for  the  coasting  trade 
or  fisheries  in  force  at  the  time ; otherwise  she 
loses  her  American  privileges. J 

If  a vessel,  enrolled  and  licensed,  proceed  on  a 
foreign  voyage  without  first  surrendering  up  her 
enrollment  and  license,  and  being  duly  registered, 
she  shall,  with  her  cargo,  imported  into  the  United 
States,  be  subject  to  forfeiture. <$> 

Vessels,  enrolled  and  licensed,  must  have  their 
name  painted  on  their  stern  in  the  same  manner  as 
is  provided  for  registered  vessels. 

* Act  18th  Feb.  1793,  ch.  52,  sec.  3.  f Ibid.  sec.  12. 

% Ibid.  sec.  1 and  2.  § Ibid.  sec.  6. 


ENKOLLMENT  AND  LICENSE  OF  SHIPS. 


23 


No  license  granted  to  any  vessel  is  in  force  any 
longer  than  she  is  owned  as,  and  is  of  the  descrip- 
tion set  forth  in  her  license,  or  for  carrying  on  any 
other  business  or  employment  than  that  for  which 
she  is  specially  licensed. 

The  license  must  be  given  up  to  the  collector 
who  granted  it  within  three  days  after  it  expires, 
provided  the  vessel  be  then  in  port,  but  if  she  be 
then  absent,  within  three  days  after  her  next  arri- 
val within  the  district  afterwards. 

In  order  to  obtain  a license  for  carrying  on  the 
coasting  trade  or  fisheries,  the  owner  or  ship’s  hus- 
band, and  master,  must  give  security  to  the  United 
States  that  the  vessel  be  not  employed  in  any  trade 
whereby  the  revenue  of  the  United  States  may  be 
defrauded. 


24 


DOCUMENTS  FOR  AMERICAN  VESSELS. 


CHAPTER  III. 

DOCUMENTS  NECESSARY  FOR  AMERICAN  VESSELS. 

The  Passport.  This  is  a permission  from  the 
government  for  the  vessel  to  proceed  on  the  voy- 
age proposed,  and  contains  the  name  and  residence 
of  the  master,  the  name  and  description  of  the  ves- 
sel, number  of  crew,  and  guns  mounted.  This 
document  is  only  necessary  for  vessels  going  to 
Europe. 

The  Sea  Letter,  specifies  the  nature  and  quan- 
tity of  the  cargo,  and  place  of  destination.  It  is  in 
the  French,  Spanish,  English,  and  Dutch  langua- 
ges, and  is  only  necessary  for  vessels  bound  around 
cape  Horn  and  the  cape  of  Good  Hope.* 

The  Register  or  Proof  of  Property,  which 
shows  the  names  and  residences  of  the  owners, 

* Martin  Yan  Buren,  President  of  the  United  States  of  Amer- 
ica, to  all  who  see  these  presents,  greeting : 

Be  it  known,  that  leave  and  permission  are  hereby  given  to 
master  or  commander  of  the  called  of  the 

burthen  of  tons  or  thereabouts,  lying  at  present  in  the 
port  of  bound  for  to  depart  asd  proceed  with  his  said 

on  his  said  voyage,  such  having  been  visited,  and  the 
said  having  made  oath  before  the  proper  officer,  that  the 
said  belongs  to  one  or  more  of  the  citizens  of  the  United 
States  of  America,  and  to  him  or  them  only. — 

In  witness  whereof  I have  subscribed  my  name  to  these  presents 
and  affixed  the  seal  of  the  United  States  of  America  thereto,  and 


DOCUMENTS  FOR  AMERICAN  VESSELS. 


25 


where  the  vessel  was  built,  and  when,  and  a par- 
ticular description  of  the  vessel.  This  must  be  re- 
turned to  the  custom  house  upon  the  return  of  the 
vessel. 

In  peace  this  is  necessary  to  show  that  the  ship 
really  belongs  to  a neutral  state.  If  she  appear  to 
either  belligerent  to  have  been  built  in  an  enemy’s 
country,  proof  is  generally  required,  that  she  was 
purchased  by  the  neutral  before,  or  captured  and 

caused  the  same  to  be  countersigned  by  at  the 

day  of  in  the  year 

By  the  President. 

Most  serene,  serene,  puissant,  puissant,  high,  illustrious,  noble, 
honorable,  venerable,  wise  and  prudent  Lords,  Emperors,  KiDgs, 
B.epublics,  Princes,  Dukes,  Earls,  Barons,  Burgomasters,  Sehe- 
pens,  Counselors,  as  also  Judges,  Officers,  Justiciaries  and  Re- 
gents of  all  the  good  cities  and  places,  whether  ecclesiastical  or 
secular,  who  shall  see  these  presents  or  hear  them  read.  We 
make  known  that  the  master  of  has  declared  upon  oath  that 
the  vessel  called  tlm  of  the  burthen  of  about  tons, 

which  he  at  present  navigates,  is  of  the  United  States  of  America, 
and  that  no  subjects  of  the  present  belligerent  powers  have  any 
part  or  portion  therein,  directly  or  indirec  tly,  so  may  God  Al- 
mighty help  him.  And  as  we  wish  to  see  the  said  master  prosper 
in  his  lawful  affairs,  our  prayer  is  to  all  the  before-mentioned,  and 
to  each  of  them  separately,  where  the  said  master  shall  arrive  with 
his  said  vessel  and  cargo,  that  they  may  please  to  receive  the  said 
master  with  goodness,  and  to  treat  him  in  a becoming  manner, 
permitting  him  upon  the  usual  tolls  and  expenses  in  passing  and 
repassing,  to  pass,  navigate,  and  frequent  the  ports,  passes  and 
territories,  to  the  end  to  transact  his  business  where  and  in  what 
manner  he  shall  judge  proper.  Whereof  we  shall  be  willingly  in- 
debted. 

In  witness  and  for  cause  whereof,  we  affix  hereto  the  seal  of 

3 


26 


DOCUMENTS  FOR  AMERICAN  VESSELS. 


legally  condemned  since  the  declaration  of  war; 
ai  d in  the  latter  case,  the  bill  of  sale  properly  au- 
thenticated, ought  to  be  produced.  Even  Habner 
admits  that  these  proofs  are  so  essential  to  every 
neutral  vessel  for  the  prevention  of  frauds,  that 
those  which  sail  without  them  will  have  no  reason 
to  complain  if  they  are  interrupted  in  their  voyages, 
and  their  neutrality  disputed. 

The  List  of  Crew  contains  the  names,  ages, 
quality,  place  of  residence,  and  place  of  birth,  of 
every  person  of  the  ship’s  company,  dec.  TJns 
must  be  returned  with  the  reporting  officer’s  certifi- 
cate of  the  number  of  men  still  on  board. 

N This  document  is  of  great  use  in  ascertaining  a 
ship’s  neutrality.  It  must  naturally  excite  a vio- 
lent suspicion,  if  a majority  of  the  crew  be  found 
to  consist  of  foreigners:  still  more  if  natives  of  the 
enemy’s  country. 

The  Charter  Party , when  one  is  given.  This 
instrument  serves  to  authenticate  many  of  the  facts 
on  which  the  proof  of  the  ship’s  neutrality  rests. 

The  Bill  of  Lading , by  which  the  captain  ac- 
knowledges the  receipt  of  the  goods  specified 
therein,  and  promises  to  deliver  them  to  the  con- 
signee or  his  order.  Of  this  there  are  usually  sev- 
eral duplicates:  of  which  one  is  delivered  to  the 
captain,  one  kept  by  the  shipper  of  the  goods,  and 
one  transmitted  to  the  consignee.  This  instrument 
being  only  the  evidence  of  a private  transaction  be- 
tween the  owner  of  the  goods  and  the  captain, 


DOCUMENTS  FOR  AMERICAN  VESSELS. 


27 


does  not  carry  with  it  the  same  degree  of  authen- 
ticity as  the  charter  party. 

The  Invoice , which  contains  the  particulars  and 
prices  of  each  parcel  of  goods,  with  the  amount  of 
the  freight,  duties,  and  other  charges  thereon, 
which  are  usually  transmitted  from  the  shippers  to 
their  factors  or  consignees.  These  invoices  prove 
by  whom  the  goods  were  shipped  and  to  whom 
consigned.  They  carry  with  them,  however,  but 
little  authenticity,  being  easily  fabricated,  where 
fraud  is  intended. 

The  Los  Book,  or  Ship’s  Journal,  which  con- 
tains an  accurate  account  of  the  ship’s  course,  with 
a short  history  of  every  occurrence  during  the  voy- 
age. If  this  be  faithfully  kept,  it  will  throw  great 
light  on  the  question  of  neutrality.  If  it  be  in  any 
respect  fabricated,  this  may  in  general  be  easily  de- 
tected. 

The  Bill  of  Health,  which  is  a certificate,  pro- 
perly authenticated,  that  the  ship  comes  from  a 
place  where  no  contagious  distemper  prevails,  and 
that  none  of  the  crew,  at  the  time  of  her  departure, 
were  infected  with  any  such  distemper. 

The  General  Clearance  contains  the  name  of 
the  captain,  vessel’s  name,  number  of  men  on 
board,  number  of  guns,  and  description  of  cargo, 
with  permission  to  proceed  to  port  of  destination. 

The  Clearing  Manifest,  containing  the  descrip- 
tion of  cargo,  and  values,  to  be  left,  in  the  custom 
house;  and  if  bound  to  France,  Sweden,  Brazil 


28 


ENTERING. 


and  Portugal,  there  must  be  a duplicate  manifest) 
certified  by  the  foreign  consul,  to  be  kept  on 
beard. 

On  Entering. 

Manifest , containing  a statement  of  cargo,  and 
description  of  packages  and  contents,  names  of 
shippers  and  consignees,  residences  of  consignees, 
and  ports  of  destination  ; and  list  of  passengers 
and  remaining  sea  stores.  List  of  seamen. 

List  of  Passengers,  showing  names,  occupa- 
tions, age,  sex,  and  whether  citizens  of  the  United 
States  — sworn  to  by  the  captain  — for  the  custom 
house,  and  one  for  the  Mayor’s  office. 


FOREIGN  TRADE. 


29 


CHAPTER  IV. 

FOREIGN  TRADE. 

• Regulations  concerning  the  Clearance  and  Arri- 
val of  Vessels , Manifests , and  the  Entry  and 
Delivery  of  their  Cargoes. 

Passport.  Masters  of  unregistered  vessels,  own- 
ed by  citizens  of  the  United  States,  and  sailing 
with  a Sea  Letter,  may  obtain  a passport  from  the 
collector  of  the  port  from  whence  they  depart,  by 
paying  therefor  $10.* 

Clearance.  The  master  of  any  vessel  bound  on 
a foreign  voyage  must,  before  a clearance  will  be 
granted  him,  deliver  to  the  collector  of  the  cus- 
toms a list  containing  the  names,  places  of  birth, 
residence,  and  a description  of  the  persons  who 
compose  his  ship’s  company.  The  master  must 
then  make  oath,  that  the  list  contains  the  names  of 
his  crew,  as  well  as  their  places  of  residence  as  far 
as  he  can  ascertain  them  : after  which  the  collec- 
tor must  deliver  to  the  master  a certified  copy  of 
said  list,  and  the  master  must,  moreover,  enter  into 
bond  with  sufficient  security,  in  the  sum  of  $400, 
that  he  will  exhibit  the  above  certified  copy  of  the 
list,  to  the  first  boarding  officer,  at  the  first  port  in 
the  United  States  to  which  he  may  arrive  on  his 
return  thereto,  and  at  the  same  time  produce  the 
* Act,  June  1,  1796,  sec.  2. 


3* 


30 


FOREIGN  TRADE. 


persons  named  therein  to  the  hoarding  officer,  un- 
less the  same  have  been  discharged  in  a.  foreign 
port  with  the  consent  of  the  consul,  vice  consul, 
commercial  agent,  or  vice  commercial  agent,  ex- 
pressed in  writing,  under  his  hand,  and  official  seal ; 
or  that  they  have  died  or  absconded,  or  been  forci- 
bly impressed  into  other  service. 

Arrival  at  Foreign  Port.  The  mastpr,  or  com- 
mander, of  every  vessel,  belonging  to  citizens  of  the 
United  States,  on  his  arrival  at  a foreign  port,  must 
deposit  his  Register , Sea  Letter , and  Mediterra- 
nean Passport , (if  he  have  one,)  with  the  consul, 
vice  consul,  commercial  agent,  or  vice  commer- 
cial agent  — if  any  such  there  be  at  said  port  — 
to  be  retained  by  him  until  he  has  obtained  a clear- 
ance. The  master  who  refuses  to  surrender  such 
papers  as  above,  is  liable  in  a line  of  $>500. 

Manifest  of  Passengers.  Masters  of  vessels, 
arriving  in  the  United  States,  from  foreign  ports, 
must  deliver  and  report  to  the  collector,  at  the 
same  time  that  they  deliver  manifests  of  their  car- 
goes, or  if  they  have  no  cargoes,  then  at  the  same 
time  they  report,  or  enter  their  vessels,  a list,  or 
manifest  of  the  passengers,  designating  particular- 
ly, the  age,  sex,  and  occupation  of  the  passengers, 
the  country  to  which  they  severally  belong,  aud 
that  of  which  it  is  their  intention  to  become  sub- 
jects or  citizens.  The  neglect,  or  refusal  of  the 
master  to  report,  as  aforesaid,  subjects  him  to  a 
penalty  of  $500.* 


* Act,  2d  March,  1819. 


FOREIGN  TRADE. 


31 


Time  for  Unlading  Vessels.  By  the  Act  of 
March  3,  1821,  the  time  for  unlading  vessels  of 
31J0  tons  burthen  and  upwards,  arriving  from  a 
foreign  port,  is  extended  to  twenty  days  from  the 
pert  of  arrival,  (Sundays  excepted.) 

The  hours  within  which  vessels  from  foreign 
ports  may  unlade,  is  from  the  rising  to  the  setting 
of  the  sun,  and  the  cargo  cannot  be  unladen  and  de- 
livered before,  or  after  that  time,  except  by  special 
license,  or  permit,  from  the  collector  of  the  port. 

Ship  Stores.  Masters  of  vessels,  in  making  out 
the  manifests  of  their  cargoes,  are  bound  to  specify 
particularly  all  those  articles  which  they  deem  to  be 
exempt  from  duty,  as  being  the  sea  stores  of  their 
vessels,  and  will  be  called  upon  to  declare  upon 
oath,  “ that  the  articles  so  specified  as  sea  stores 
are  truly  such , and  are  not  intended  by  way  of 
merchandise  or  for  sale.  If  it  appears  to  the  col- 
lector that  the  quantity  designated  as  sea  stores  is 
not  excessive,  then  they  are  free  from  duty.  But 
if  the  collector,  to  whom  the  report  and  manifest  is 
to  be  made,  deems  that  the  quantity  designated  as 
sea  stores  is  excessive,  and  levies  a duty  on  such 
excess,  the  master  must  pay  the  same  forthwith. 

If  any  other,  or  greater  quantity  of  articles  are 
found  on  board  of  any  such  ship  or  vessel,  than  the 
master  has  specified  in  his  manifest,  they  are  by 
law  forfeited  to  the  government,  and  the  master 
liable  to  pay  treble  their  amount. 

If  the  master  land  any  of  the  sea  stores  of  the 
vessel  without  first  obtaining  a permit  from  the 


32 


FOREIGN  TRADE. 


Collector,  he  also  forfeits  treble  their  value,  as  well 
as  the  goods.* 

Smuggling.  The  master,  and  all  other  persons, 
knowingly  assisting  in  unlading,  removing,  or  se- 
creting goods,  contrary  to  the  above,  are  liable  to 
forfeit  and  pay,  each,  and  severally,  the  sum  of 
$ 400,  and  to  be  disabled  from  holding  any  office  of 
trust  or  profit,  under  the  United  States,  for  a term 
not  exceeding  seven  years. 

It  is  made  the  duty,  also,  of  the  collector  to  ad- 
vertise the  names  of  all  such  persons,  in  some  pub- 
lic print,  within  twenty  days  after  their  convic- 
tion. 

Passport.  Vessels  bound  on  a foreign  voyage, 
are  required  to  obtain  a passport,  as  provided  by 
law,  for  which  the  master  must  pay  $10.  On  re- 
ceiving the  passport  the  master  must  give  bonds  in 
the  penalty  of  two  thousand  dollars,  conditioned 
that  the  said  passport  shall  not  be  used  for  the  pro- 
tection of  any  other  ship  or  vessel  than  the  one  de- 
scribed in  the  same  ; and  in  case  of  the  loss  or  sale 
of  the  vessel,  the  same  shall  be  delivered  up  in 
three  months  to  the  collector  from  whom  it  was 
received,  if  the  loss  or  sale  take  place  within  the 
United  States  ; or  within  six  months  if  the  sale  or 
loss  take  place  any  where  this  side  of  the  cape  of 
Good  Hope  ; and  within  eighteen  months  if  at  a 
more  distant  place. 

To  depart  on  a foreign  voyage  without  such 
passport  subjects  the  master  to  a fine  of  $200. 

* Act,  2d  March,  1799,  sec.  45. 


FOREIGN  TRADE. 


33 


Vessels  owned  in  the  United  States,  and  bound 
to  a foreign  port,  other  than  a port  in  America,  are 
subject  to  a charge  of  four  dollars,  fur  each  and 
every  voyage,  to  be  paid  at  the  time  of  clearing 
outward.  If,  however,  the  vessel  has  cleared  for  a 
foreign  port  from  a port  in  America,  out  of  the 
United  States,  then  this  charge  must  be  paid  by 
the  master  on  his  arrival  from  such  foreign  port  in 
any  port  in  the  United  States. 

Account  of  Seamen.  Masters  of  vessels,  arriving 
from  foreign  ports,  must  render  a true  account  to 
the  collector  of  all  the  seamen  employed  on  board 
during  the  voyage. 

American  vessels  from  abroad,  to  become  entitled 
to  be  placed  upon  the  most  favorable  footing,  must 
have  the  captain,  and  all  the  mates  Americans; 
and  also  two-thirds  of  all  other  persons  making  a 
part  of  their  crew,  Americans,  “ or  persons  not  the 
subjects  of  any  foreign  prince  or  state.”  In  this 
latter  item  are  included  the  seamen,  the  cook,  the 
apprentices,  the  boys  and  all  other  persons,  (not  in- 
cluding the  captain  and  mates,)  doing  duty  on 
board.  They  must  also  have  an  American  register. 

Importation  of  Goods.  No  merchandise  can 'be 
imported  in  any  vessel  belonging,  in  whole,  or  in 
part,  to  a citizen  or  inhabitant  cf  the  United 
States,  unless  the  master  have  on  board  a manifest 
in  writing,  signed  by  such  master  or  other  person 
having  the  command,  containing  the  name  of  the 
port  where  such  merchandise  was  received,  and  the 


34 


FOREIGN  TRADE. 


port  where  consigned  or  destined  to,  within  the 
United  States;  particularly  noting  the  merchan- 
dise destined  for  each  port  respectively,  and  the 
name,  description  and  built  of  the  vessel,  with  the 
marks  and  numbers  on  each  package,  with  the 
name  of  the  owner  and  master  ; and  every  package 
must  be  truly  and  particularly  described,  as  well  as 
all  goods  stowed  loose  — to  whom  consigned,  ac- 
cording to  the  bills  of  lading  ; or  if  to  order  ; with 
the  names  of  all  passengers,  distinguishing  whether 
cabin  or  steerage  passengers,  or  both,  with  their 
baggage,  and  an  account  of  all  remaining  sea 
stores.* 

Manifests.  It  is  the  duty  of  the  masters  of 
American  vessels  arriving  from  foreign  ports,  to 
have  their  manifests  made  out  at  the  time  of  leav- 
ing such  ports.  The  time  of  lading  is  the  most 
proper  for  making  out  a manifest  of  the  cargo- 
The  master  is  liable  to  incur  the  penalty  of  the 
law,  if  he  does  not  have  his  manifest  in  readiness 
to  exhibit  to  any  custom  house  officer  who  may 
board  him  within  four  leagues  of  the  coast.  The 
master  is  not  allowed,  by  law,  to  make  out  his 
manifest,  after  the  arrival  of  his  vessel  within  four 
leagues  of  the  coast. f 

Copy  of  Manifest.  The  master  must  be  pre- 
pared not  only  to  exhibit  to  such  officer,  on  his 
boarding  him,  any  where  within  a league  of  the 
coast,  his  original  manifest,  but  must  deliver  to 
* Act,  2d  March,  1799,  sec.  23.  f Ibid. 


FOREIGN  TRADE. 


35 


him  a copy  thereof.  The  officer  certifies  on  the 
original,  the  day  and  year  the  same  was  produced  ; 
the  copy  is  compared  with  the  original,  and  there 
is  certified  by  such  officer,  on  the  back  of  the  same, 
the  day  and  year  such  copy  was  given  to  him. 
The  original  manifest  is  delivered  afterwards  by 
the  master  to  the  collector. 

The  master  must  also  provide  another  copy  for 
the  officer  of  the  customs  who  first  comes  on 
board  after  the  vessel  has  arrived  in  port,  who 
also  certifies  on  the  original  and  forwards  his  copy 
to  the  collector.  If  the  original  be  shown  with- 
out such  certificates,  the  master  must  swear  that 
no  copies  have  been  called  for  by  the  other  offi- 
cers. It  is  sufficient  to  show  the  original,  with 
the  indorsements,  to  other  officers.* 

Any  vessel  so  laden,  within  four  leagues  of  the 
coast,  or  within  the  limits  of  any  district,  unload- 
ing goods  without  authority  from  proper  officers, 
the  master  and  mate  forfeit  one  thousand  dollars 
for  each  offence,  and  the  goods  are  forfeited,  except 
in  case  of  accident,  necessity,  or  stress  of  weather: 
which  must  be  made  known  and  proved  under 
oath  by  the  master,  mate,  and  one  other  officer,  or 
mariner.f 

The  penalty  on  masters  for  not  exhibiting  the 
manifest,  and  delivering  a copy  thereof,  on  demand 
from  the  proper  officer;  or  for  not  informing  such 


#Act,  2d  March  1799,  Sec.  23. 


fib  id.  Sec.  27. 


36 


FOREIGN  TRADE. 


officer  of  the  true  destination  of  such  vessel  is 
$500  for  each  offence.* 

When  Cargo  to  be  delivered  in  different  Dis- 
tricts. If  merchandise  imported  is  destined  to  be 
delivered  in  different  districts  or  ports,  the  said 
merchandise  must  be  inserted  in  successive  order  in 
the  manifest ; and  all  Spirits,  Wines  and  Teas,  being 
the  whole  or  any  part  of  the  cargo,  must  be  inserted 
in  like  order,  distinguishing  the  port  where  destined, 
and  the  kind,  quantities  and  qualities  thereof. 

If  goods  be  consigned  by  the  manifest,  to  per- 
sons residing  in  different  ports  of  the  United  States, 
the  master  may  land  at  the  first  port,  such  goods  as 
are  consigned  to  persons  at  the  first  port,  and  he 
may  at  his  own  pleasure  land  either  the  whole,  or 
a part,  or  none  of  the  rest,  until  they  reach  the 
ports  to  which  they  are  destined.  The  manifest 
must  specify  the  articles  destined  to  each  port. 
The  master  must  give  a bond  for  the  landing  and 
securing  the  duties  on  whatever  goods  he  chooses 
to  keep  on  board  his  vessel,  for  the  purpose  of  car- 
rying forward  to  another  port. 

Such  vessels  may  take  on  board  any  other  arti- 
cles to  be  landed  in  any  other  port  in  the  United 
States;  for  which  goods  they  must  have  the  mani- 
fest of  a coaster,  and  clear  out  as  such.  They 
must  however  pay  tonnage  duties  in  each  port. 

Certificate.  If  the  vessel  remain  in  port  more 
than  forty-eight  hours,  the  collector  furnishes  the 


*Act,  2d  March  1799,  Sec.  26. 


FOREIGN  TRADE. 


37 


master  with  a copy  of  his  report,  and  a certificate, 
showing  on  what  part  of  the  cargo  the  duties  have 
been  paid  or  secured.  The  copy  of  the  report 
the  master  must  produce  to  the  collector  of  the 
port  where  bound,  together  with  the  certificates  of 
the  collector  of  other  districts,  when  goods  have 
been  landed  within  twenty-four  hours  after  her  ar- 
rival, (except  in  the  State  of  Georgia  where  forty- 
eight  hours  are  allowed,)  under  penalty  of  $500. — 
The  bond  is  cancelled  by  producing  from  the  col- 
lector of  such  district  a certificate,  within  six 
months,  of  the  due  entry  and  delivery  of  such 
merchandise,  in  such  district,  or  upon  due  m’oof 
that  such  entry  and  delivery  were  unavoidably  pit- 
vented  by  loss  or  otherwise.* 

Spirits , Wines  and  Teas.  The  master  must, 
also,  apply  to  the  surveyor  or  inspector  of  the  port 
for  a copy  of  the  report  similar  to  the  report  of  the 
collector,  relating  to  distilled  Spirits,  Wines  or 
Teas,  when  there  are  any  on  board  to  be  delivered 
in  different  districts. 

The  want  of  such  report  from  the  surveyor  or 
inspector  subjects  the  Spirits,  Wines  and  Teas  to 
forfeiture  and  a penalty  upon  the  master  of  $500.  f 
American  vessels  arriving  from  foreign  ports  may 
put  on  their  manifests  either  the  whole  or  a part  of 
their  cargo,  as  destined  for  a foreign  port.  Such 
parts  as  are  thus  destined  they  will  not  be  obliged 
to  land  in  the  United  States,  nor  to  secure  the  du- 
* Act  2d  March,  1799,  Sec.  33.  flbid.  35. 

4 


38 


FOREIGN  TRADE. 


ties  thereon  ; but  bonds  must  be  given  for  the  land- 
ing them  abroad,  the  same  as  debenture  goods.  * 
Letters.  Masters  of  American  vessels  are  re- 
quired to  deposit  their  letters  at  the  post  office 
previous  to  entry  at  the  custom  house. f 

They  are  also  required,  under  a penalty  of  $100. 
to  declare  on  oath  whether  any  seamen  have  been 
impressed  in  the  course  of  the  voyage,  and  the 
course  they  took  thereupon. 

For  all  goods  not  included  in  the  manifest,  or 
imported  without  a manifest,  the  master  forfeits  a 
sum  equal  to  their  value;  and  all  merchandise  not 
included  in  such  manifest,  belonging  or  consigned 
to  the  master,  mate,  officer  or  crew,  is  forfeited, 
unless  it  is  made  to  appear  to  the  satisfaction  of  the 
collector,  naval  officer,  and  surveyor,  or  the  ma- 
jor part  of  them,  or  to  a court  on  trial,  that  no  part 
was  unshipped,  except  what  was  mentioned  in  the 
report  of  the  master,  or  that  the  manifest  has  been 
lost,  or  mislaid,  without  fraud,  or  defaced  by  acci- 
dent, or  incorrect  by  mistake. J 

Neglect  to  Enter.  When  a vessel  has  arrived 
within  any  district  in  the  United  States,  from  any 
foreign  port,  the  master  must  not  depart,  or  attempt 
to  depart  from  the  same,  (unless  to  some  more  in- 
terior port,  or  by  stress  of  weather,  or  pursuit  of 
enemies,)  before  report  and  entry  with  the  collec- 

* Act  2d  March,  1799,  Sec.  32. 
f Act  3d  M-arch,  1S25,  Sec.  17. 
t Act  2d  March,  1799,  Sec.  23. 


FOREIGN  TRADE. 


39 


tor.  If  the  master  neglects  to  enter  as  aforesaid 
he  forfeits  $400. 

Masters  of  vessels  arriving  from  foreign  ports 
must  report  their  arrival  within  twenty-four  hours 
thereafter  to  the  collector  of  the  port,  (if  the  hours 
of  business  at  the  office  of  the  chief  officer  of  the 
customs  at  such  port  will  permit;)  and  within 
forty-eight  hours  after  he  must  make  a further  re- 
port in  writing  to  the  collector;  which  report  must 
be  in  the  form,  and  contain  all  the  particulars,  re- 
quired to  be  inserted  in  the  manifest.* 

If  the  master  or  commander  neglects  to  make 
such  report  he  forfeits  the  sum  of  $100. 

Masters  of  vessels,  employed  by  any  prince,  or 
state,  as  public  packets,  and  forbidden  by  law  to  be 
engaged  in  the  transportation  of  goods  in  the  way 
of  trade,  are  not  required  to  make  such  report  or 
entry,  f 

Every  master  of  a vessel  arriving  from  any  for- 
eign port,  or  place,  having  on  board  Spirits,  Wines 
or  Teas,  intended  to  be  transported  from  one  to  an- 
other port,  must  obtain  from  the  inspector  of  the 
customs  for  that  port,  a certificate  of  the  quantity 
and  particulars  of  the  Spirits,  Wines  and  Teas  dis- 
charged at  that  port,  and  also  the  quantity  and 
particulars  of  those  that  are  to  be  carried  forward  ; 
and  the  master  is  bound  to  produce  his  certificate 
at  the  next  port  he  enters  within  twenty-four  hours 
after  such  entry,  and  deliver  the  same  to  the  col- 
* Act  2d  March,  1799,  Sec.  30. 


f Ibid.  Sec.  31. 


40 


FOREIGN  TRADE. 


lector,  or  inspector  of  the  port  ; and  in  case  he 
neglects  so  to  do  he  forfeits  the  sum  of  $500. 

The  master  forfeits  $500  in  case  any  package 
reported  in  the  manifest  be  not  found  on  board,  or 
in  case  there  be  any  disagreement  between  the 
merchandise  on  board  and  the  report  of  the  same  : 
unless  he  can  prove  to  the  satisfaction  of  the  col- 
lector and  naval  officer  of  the  port,  or  when  on 
trial,  to  the  satisfaction  of  the  court,  that  no  part  of 
the  merchandise  of  said  ship  has  been  unladen 
since  it  was  taken  on  board,  except  as  specified  in 
the  manifest,  or  that  the  disagreement  is  by  acci- 
dent or  mistake. 

In  every  such  case  the  master  must  make  a post 
entry  of  any  and  all  merchandise  omitted  to  be  re- 
ported in  such  manifest.  No  permit  can  be  grant- 
ed to  unlade  any  such  merchandise  so  omitted, 
before  such  post  entry  has  been  made. 

The  master  or  any  other  person  having  command 
of  any  vessel,  having  distilled  Spirits  or  Wines  on 
board,  within  forty-eight  hours  after  arrival,  must 
make  a report  in  writing  to  the  surveyor  or  inspec- 
tor of  the  revenue  of  the  port,  under  the  penalty 
of  $500,  and  the  loss  of  the  spirits  so  omitted. 

Goods  remaining  on  board  after  the  expiration  of 
fifteen  working  days,  (or  twenty  days  where  the 
vessel  is  of  more  than  300  tons  burthen,  and  from 
a foreign  port,)  from  the  day  of  the  report  of  the 
master  to  the  collector,  made  upon  his  arrrival, 
(other  than  those  reported  for  some  other  district, 


FOREIGN  TRADE. 


41 


or  some  foreign  port,)  the  inspector  must  take  pos- 
session of. 

Regulation  for  clearing  Vessels. 

The  master  of  any  vessel  bound  to  a foreign 
port,  must  deliver  to  the  collector  a manifest  of  all 
the  cargo  on  board,  and  the  value  thereof,  by  him 
subscribed,  and  swear  or  affirm  to  the  truth  there- 
of. Thereupon  the  collector  grants  a clearance 
for  such  vessel  and  her  cargo,  without  specifying 
the  particulars  in  such  clearance  unless  required  by 
the  master.  If  any  vessel  depart  on  her  foreign 
voyage  without  delivering  such  manifest  and  ob- 
taining a clearance,  the  master  forfeits  $500.* 

Before  a clearance  can  be  granted  for  any  vessel 
bound  to  a foreign  port,  the  owners,  shippers  or 
consignees  of  the  cargo  on  board,  must  deliver  to 
the  collector  manifests  of  the  cargo,  or  the  parts 
thereof  shipped  by  them  respectively,  and  verify 
the  same  by  oath  or  affirmation. 

Such  manifests  might  specify  the  kind  and  quan- 
tities of  the  articles  shipped  by  them  respectively, 
and  the  value  of  the  total  quantity  of.  each  kind 
of  article.  They  must  also,  together  with  the 
master,  before  a clearance  can  be  granted,  state 
upon  oath  or  affirmation  to  the  collector,  the  foreign 
place  or  county  in  which  such  cargo  is  truly  in- 
tended to  be  landed.f 

* Act  2d  March,  1799",  sec.  3.  Seeformof  report  in  appendix,  (A. ) 

f Act  10th  Feb.  1820,  Sec.  11. 

4* 


42 


COASTING  TRADE, 


CHAPTER  Y. 

REGULATIONS  CONCERNING  VESSELS  IN  THE  COAST- 
ING TRADE. 

Vessels  owned  by  citizens  of  the  United  States, 
and  engaged  in  the  coasting  trade,  must  be  enroll- 
ed and  licensed  for  that  trade,  or  in  case  they  are 
not  so  enrolled  and  licensed,  pay  a tonnage  duty  of 
fifty  cents  per  ton,  to  be  exacted  once  a year. 
In  this  trade  it  is  required  in  all  cases,  that  the 
master  be  an  American  citizen,  and  if  such  vessel 
be  carrying  on  trade  beyond  the  limits  of  their  own 
and  neighboring  states,  then  three-fourths  of  the 
crew,  at  least,  must  be  “American  citizens,  or  per- 
sons not  the  subjects  of  any  foreign  power  or 
state.” 

Change  of  Master.  When  the  master  of  a 
licensed  vessel  is  changed,  such  change  must  be 
reported  to  the  collector  of  the  port  where  the 
change  is  made ; and  if  there  be  none,  then  at  the 
port  where  the  vessel  may  next  arrive.  The  col- 
lector upon  proof  of  the  citizenship  of  the  new 
master,  and  upon  his  taking  an  oath  not  to  defraud 
the  revenue,  endorses  the  change  upon  the  license.* 

Any  revenue  officer  may  require  the  enrollment 
or  license  to  be  produced  at  any  time  ; and  the  re- 


*Act  18th  Feb.  1793,  Sec.  12. 


COASTING  TRADE- 


43 


fusal  to  exhibit  the  same,  subjects  the  master  to  a 
fine  of  $100.* 

Vessels  without  license  forfeited,  for  what.  Any 
vessel  engaged  in  the  coasting  trade,  and  sailing 
without  a license,  having  on  board  any  articles  of 
foreign  growth  or  manufacture,  or  distilled  spirits, 
other  than  sea  stores,  she,  together  with  her  tackle, 
apparel,  furniture  and  lading,  found  on  board,  are 
forfeited. 

When  license  expires  at  sea.  But  if  a licensed 
vessel  be  at  sea  at  the  expiration  of  the  time  for 
which  the  license  was  given,  and  the  master  make 
oath  that  such  was  the  case  ; and  also,  within  forty- 
eight  hours  after  the  arrival,  deliver  to  the  collector 
of  the  district  in  which  he  first  arrives,  the  license 
which  has  expired,  then  the  vessel  is  not  forfeited 
nor  liable  to  pay  fees  and  tonnage. f 

Alien  vessels  cannot  sail  coastwise,  except.  No 
goods  can  be  transported,  under  a penalty  of  forfeit- 
ure of  the  same,  from  one  to  another  port  of  the 
United  States  in  a vessel  belonging  wholly  or  in 
part  to  a subject  of  any  foreign  power  ; but  such 
vessel  may  sail  from  one  to  another  such  port,  car- 
rying such  goods  only  as  were  imported  in  her  from 
some  foreign  port, and  which  have  not  been  unladen. f 
Registered  vessels  may  be  enrolled  upon  the 
registry  being  given  up,  and  so  enrolled  vessels 
may  in  like  manner  be  registered. 

*Act  18tli  Feb.  1793,  Sec.  13.  flbid.  Sec.  6. 

t Act  1st  March,  1817,  Sec.  4. 


44 


COASTING  TRADE. 


Change  of  Registry  to  Enrollment.  When 
any  vessel  is  in  a district  other  than  that  to  which 
she  belongs,  and  the  master  is  desirous  to  change 
her  registry  to  an  enrollment,  or  her  enrollment  to  a 
registry,  he  can  apply  to,  and  obtain  the  desired 
change  by  giving  bonds  as  required  by  law. — The 
master  negotiating  the  exchange  must,  however, 
within  ten  days  after  her  arrival  in  the  port  to 
which  she  belongs,  surrender  such  register  or  en- 
rollment to  the  collector  to  be  by  him  cancelled. 
If  the  master  neglects  to  deliver  such  register  with- 
in the  time  specified,  he  forfeits  $100.# 

Bond  token  license  is  granted. 1.  In  order  to  the 
licensing  of  any  vessel  for  carrying  on  the  coasting 
trade,  or  fisheries,  the  husband,  together  with  the 
master,  with  one  or  more  sureties,  to  the  satisfac- 
tion of  the  Collector,  must  become  bound  to  pay 
to  the  United  States,  if  she  be  of  the  burthen  of 
five  tons  and  less  than  twenty  tons,  the  sum  of 
$100  ; if  twenty  tons,  and  not  exceeding  thirty 
tons,  the  sum  of  $200;  and  if  above  thirty  tons 
and  not  exceeding  sixty  tons,  the  sum  of  five  hun- 
dred dollars ; and  if  above  sixty  tons  the  sum  of 
one  thousand  dollars — in  case  it  appears  within  two 
years  from  the  date  of  the  bond,  that  she  has  been 
employed  in  trade  whereby  the  revenue  of  the 
United  States  has  been  defrauded,  during  the  time 
the  license  remained  in  force ; and  the  master  must 
also  wear  thnt  he  is  an  American  citizen,  and  that 


*Act  18th  Feb.  1829,  Sec.  3. 


COASTING  TRADE. 


45 


the  license  shall  not  be  used  for  any  other  vessel, 
or  any  other  employment  than  for  which  it  is  spe- 
cially granted,  or  in  any  trade  whereby  the  revenue 
may  be  defrauded  ; and  if  the  vessel  be  less  than 
twenty  tons  burthen,  her  husband  must  swear  that 
she  belongs  wholly  to  a citizen  or  citizens  of  the  Uni- 
ted States ; whereupon  the  collector  of  the  district 
whereto  such  vessel  may  belong  (the  duty  of  six 
cents  per  ton  being  first  paid)  must  grant  a license 
in  the  form  directed  by  law,  for  carrying  on  the 
coasting  trade,  whale  fishery,  cod  fishery,  or  mack- 
erel fishery.* 

Steamboats  intended  to  ply  only  in  a river  or 
bay  of  the  United  States,  may  be  enrolled  and 
licensed  and  no  oath  is  required  that  she  be  wholly 
owned  by  a citizen  or  citizens  of  the  United  States. 

Change  of  Master  must  be  reported.  When 
the  master  of  any  licensed  vessel  is  changed,  the 
new  master,  or  in  case  of  his  absence,  an  owner 
must  report  such  change  to  the  collector  residing 
at  the  port  where  the  same  may  happen,  if  there 
be  one,  otherwise  to  the  collector  residing  at  any 
port  where  such  vessel  may  arrive,  who.  upon  the 
oath  of  such  master,  or  in  case  of  his  absence,  of 
an  owner,  that  he  is  a citizen  of  the  United  States, 
and  that  he  will  not,  while  such  license  is  in  force, 
be  employed  in  any  manner  whereby  the  revenue 
may  be  defrauded,  shall  indorse  such  change  on 
the  license  with  the  name  of  the  new  master. 


*Act  18th  Feb.  1793,  Sec.  4. 


46 


COASTING  TRADE. 


Without  such  notice  of  change  and  endorsement 
thereon,  the  vessel  becomes  liable  to  be  assessed 
upon  as  a registered  vessel  and  the  new  master  to 
a fine  of  ten  dollars. 

Master  must  report  account  of  Seamen.  Before 
any  vesssel,  whose  enrollment  or  license  for  carry- 
ing on  the  coasting  trade  has  expired,  can  get  a 
new  enrollment,  the  master  must  render  a true  ac- 
count of  the  number  of  seamen,  and  the  time  they 
have  severally  been  employed  on  board  during  the 
continuance  of  the  expired  license,  and  must  pay 
to  the  collector  twenty  cents  per  month  for  every 
month  such  seamen  have  been  so  severally  employ- 
ed, which  sum  the  master  may  detain  from  the 
wages  of  such  seamen. 

If  the  master  renders  a false  account,  he  forfeits, 
and  is  liable  to  pay,  the  sum  of  $100.* 

Surrender  of  License.  The  license  granted  to 
any  vessel  must  be  given  up  to  the  Collector  of  the 
district  who  granted  the  same,  within  three  days 
after  the  expiration  of  the  time  for  which  it  \vas 
granted,  in  case  she  be  then  within  the  district ; or. 
if  she  be  absent  at  that  time,  within  three  days 
from  her  first  arrival  within  the  district  afterwards  ; 
or  if  she  be  sold  out  of  the  district,  within  three 
days  after  the  arrival  of  the  master  within  any  dis- 
trict, to  the  Collector  of  such  district,  taking  his 
certificate  therefor. 

If  the  master  neglects  or  refuses  to  deliver  up 


#Act  16th.  July,  1798,  Sec.  2. 


COASTING  TRADE. 


47 


the  license  as  above,  he  forfeits  $50.  The  mas- 
ter, however,  is  not  liable  to  the  penalty  if  he  has 
previously  given  the  same  up  to  some  other  Collec- 
tor, or  if  it  be  lost,  mislaid,  or  destroyed. 

May  trade  coastwise , without  entering  or  clearing. 

Licensed  coasters  of  twenty  tons  burthen  and 
upwards,  may  carry  on  such  trade  within  the  lim- 
its of  either  the  three  great  districts,  without  being 
obliged  to  clear  or  enter  at  the  Custom  House,  pro- 
vided they  have  not  on  board 


Distilled  spirits  in  casks  exceeding 

500  galls. 

Wine  in  do. 

do. 

250  do. 

Wine  in  bottles 

do. 

100  doz. 

Sugar  in  casks  or  boxes 

do. 

3000  lbs. 

Tea  in  chests  or  boxes 

do. 

500  do. 

Coffee  in  casks  or  bags 

do. 

1000  do. 

Of  foreign  goods,  in  packages,  as  imported,  exceed- 
ing $400,  or  goods  of  foreign  growth  or  manufac- 
ture, or  both,  whose  aggregate  value  exceeds  $800. 

Must  make  a Report.  A master  of  a vessel  laden 
with  spirits,  &c.,  as  above,  must  make  a report  or 
manifest  of  the  cargo,  taken  on  board  at  the  port  of 
lading,  and  have  the  same  certified  by  the  Collec- 
tor; and  this  manifest,  previously  to  his  unlading 
any  part  of  the  cargo,  must  be  delivered  to  the  Col- 
lector of  the  port  of  unlading,  if  any  such  resides 
within  five  miles  of  the  same  ; if  not,  the  master 
may  proceed  to  discharge  his  cargo,  but  must  de- 


48 


COASTING  TRADE. 


liver  to  the  collector  or  surveyor  of  the  next  port, 
within  twenty-four  hours  after  his  arrival  at  the 
same,  the  said  manifest,  and  make  oath  to  the  truth 
of  the  same. 

The  Great  Coasting  Districts . For  the  more 
convenient  regulation  of  the  coasting  trade,  the  sea 
coast  and  navigable  rivers  of  the  United  States  are 
divided  into  three  great  districts;  the  first  includes 
all  the  districts  on  the  sea  coast  and  navigable  riv- 
ers, between  the  eastern  rivers  of  the  United  States 
and  the  southern  limits  of  Georgia;  the  second,  all 
the  districts  on  the  sea  coast  and  navigable  rivers, 
between  the  river  Perdido  and  the  western  limits 
of  the  United  States;  and  the  third,  all  the  ports, 
harbors,  sea  coast,  and  navigable  rivers  between 
the  southern  limits  of  Georgia  and  the  river  Perdido.* 
Every  vessel,  of  the  burthen  of  twenty  tons  or 
upwards,  licensed  to  trade  between  the  different 
districts  of  the  United  States,  may  carry  on  such 
trade  between  the  districts  included  within  the 
great  districts  respectively,  and  between  a state  in 
one  and  an  adjoining  state  in  another  great  district, 
in  manner  and  subject  only  to  the  regulations  that 
are  now  by  law  required  to  be  observed  by  such 
vessels  in  trading  from  one  district  to  another  in 
the  same  state,  or  from  a district  in  one  state  to  a 
district  in  the  next  adjoining  state. f 

Every  vessel  of  the  burthen  of  twenty  tons  or 

* Act,  March  2,  1819,  Sec.  1 — May  7,  1822,  Sec.  11. 
t Ibid.  Sec.  2. 


COASTING  TRADE. 


49 


upwards,  licensed  so  to  trade,  must,  in  trading  from 
one  to  another  great  district,  other  than  between  a 
state  in  one  and  an  adjoining  state  in  another  great 
district,  conform  to  and  observe  the  regulations  that 
are  required  to  be  observed  by  such  vessels  in 
trading  from  a district  in  one  state  to  a district  in 
any  other  than  an  adjoining  state. 

Manifest  of  the  Cargo.  The  master  of  any 
vessel  licensed  for  carrying  on  the  coasting  trade, 
bound  from  one  great  district  in  the  United  States 
to  another  great  district,  must  make  and  deliver  to 
the  collector  of  the  port  from  which  he  is  to  de- 
part, duplicate  manifests  of  all  the  cargo  on  board, 
or,  if  there  be  no  cargo,  he  must  so  certify;  and  if 
there  be  any  distilled  spirits  or  goods  of  foreign 
growth  or  manufacture  on  board,  other  than  sea 
stores,  the  master  must  specify  in  such  manifest, 
particularly,  the  marks  and  numbers  of  every  box, 
bag,  cask,  chest  or  package,  containing  the  same, 
with  the  name  and  place  of  residence  of  every  ship- 
per and  consignee  of  such  distilled  spirits  or  goods 
of  foreign  growth  or  manufacture,  and  the  quantity 
shipped  by  and  to  each,  and  swear,  that  such  goods 
of  foreign  growth  or  manufacture,  loere,  to  the  best 
of  his  knowledge  and  belief,  legally  imported,  and 
the  duties  thereupon  paid  or  secured,  or  if  spirits 
distilled  within  the  United  States,  that  the  duties 
thereupon  have  been  duly  paid  or  secured.  If  the 
master  depart  from  the  port  of  lading,  with  distilled 
spirits  or  goods  of  foreign  growth  or  manufacture 
5 


50 


COASTING  TRADE. 


on  board,  without  complying  with  the  several 
things  enjoined  as  above,  he  forfeits  one  hundred 
dollars,  and  if  he  depart  without  any  cargo,  or  with 
a cargo  of  goods  of  the  growth  or  manufacture  of 
the  United  States  only,  and  neglects  to  deliver  to 
the  collector  of  the  port  the  manifests  as  above,  he 
forfeits  fifty  dollars .* 

The  master  of  any  vessel,  laden  as  above,  at  the 
port  of  arrival  and  delivery,  must  deliver  to  the 
collector  or  surveyor  of  the  port,  within  twenty- 
four  hours  after  arrival,  if  such  reside  within  five 
miles,  and  if  at  a greater  distance,  within  forty- 
eight  hours  next  after  his  arrival,  and  previous  to 
the  unlading  of  any  of  the  goods  brought  in  such 
vessel,  the  manifest  of  the  cargo,  certified  by  the 
collector  or  surveyor  of  the  district  from  whence 
she  last  sailed.  If  a part  of  the  distilled  spirits,  or 
goods  of  foreign  growth  or  manufacture  are  to  be 
landed,  the  master  must  get  the  collector  or  sur- 
veyor of  the  port  where  the  same  is  lauded,  to  cer- 
tify the  same  upon  the  back  of  the  manifest,  speci- 
fying the  articles  to  be  landed.  If  the  master  neg- 
lect to  comply  with  the  above  stipulations,  he  for- 
feits $100,  — and  if  he  land  the  distilled  spirits,  or 
goods  of  foreign  growth  or  manufacture,  without 
the  certificate  and  permit  of  the  collector  or  sur- 
veyor as  above,  the  same  are  forfeited  ; and  if  the 
same  amount  to  eight  hundred  dollars,  the  vessel 
with  her  tackle,  apparel,  and  furniture  are  forfeited. | 
* Act  18th  Feb.  1793,  sec.  17.  t Ibid. 


COASTING  TRADE. 


51 


The  master  of  a coasting  vessel  is,  at  all  times, 
bound  to  have  a manifest  of  the  cargo  that  is  laden 
on  board,  whether  it  is  of  a nature  to  require  him 
to  enter  and  clear  or  not ; and  on  failure  thereof,  if 
the  lading  of  such  vessel  consists  only  of  goods, 
the  produce  and  manufacture  of  the  United  States, 
(distilled  spirits  excepted)  he  is  subject  to  a fine  of 
$20.  If  there  be  distilled  spirits,  or  goods,  wares, 
or  merchandise  of  foreign  growth  or  manufacture 
he  is  subject  to  a fine  of  $40  ; if  he  refuses  to  i n- 
form any  officer  of  the  custom  from  whence  such 
vessel  last  sailed,  and  how  long  she  has  been  in 
port.,  he  is  subject  to  a fine  of  $100  ; and  if  any  of 
the  goods  laden  on  board  such  vessel,  belonging  to 
the  master,  owner,  or  mariner,  be  of  foreign  growth 
or  manufacture,  or  spirits  distilled  within  the  Uni- 
ted States,  so  much  of  the  same  as  are  found  on 
board,  not  included  in  the  manifest,  are  forfeited. 

If  any  goods  of  foreign  growth  or  manufacture 
be  found  on  board  a coasting  vessel,  on  which  the 
duties  have  not  been  paid  or  secured,  they  are  for- 
feited.* 

Port  of  Necessity.  Upon  putting  into  a port, 
other  than  the  port  of  destination,  the  master  must, 
within  twenty-four  hours  after  arrival,  report  to  an 
officer  of  the  customs,  if  any  reside  there,  the  arri- 
val of  the  vessel,  the  names  of  the  places  he  came 
from,  and  where  bound,  with  an  account  of  his 
cargo.  Penalty  for  neglect,  $20. f 
* Act  18th  Feb.  1793,  sec.  18. 


f Ibid  sec.  22. 


52 


COASTING  TRADE. 


Fishing  Vessels.  If  vessels,  licensed  for  the 
fisheries,  are  found  within  three  leagues  of  the 
coast  with  foreign  goods  on  board  exceeding  $>500 
in  value,  without  a permit,  they  are  liable  to  seiz- 
ure, with  the  foreign  goods. 

Vessel  hound  to  a port  within  the  same  or  an 
adjoining  Stale,  Where  licensed  vessels,  bound 
to  a district  in  the  same  or  an  adjoining  State  have 
on  board  goods  of  domestic  produce  or  manufacture 


only,  or, 

Distilled  spirits  not  more  than  500  galls. 

Wine  in  casks  <!  “ “ 250  “ 

Wine  in  bottles  “ “ “ 100  dozen 

Sugar  in  casks  or  boxes  “ 3000  lbs. 

Tea  in  chests  or  boxes  “ 500  “ 

Coffee  in  casks  or  bags  “ 1000  “ 


or  foreign  merchandise  in  packages  of  not  more 
than  $400  in  value,  or  goods  of  foreign  growth  or 
manufacture,  or  of  both,  whose  aggregate  value 
shall  not  be  more  than  $>SOO,  the  master  need  not 
deliver  a manifest  thereof  or  obtain  a permit  pre- 
vious to  her  departure,  or  on  her  arrival  make  any 
report  • but  such  master  must  be  provided  with  a 
manifest,  by  him  subscribed,  of  the  lading  which 
was  on  board  at  the  time  of  his  departure  from  the 
district  from  which  she  last  sailed;  and  if  the  same 
or  any  part  consists  of  distilled  spirits,  or  goods  of 
foreign  growth  or  manufacture,  with  the  marks  and 
numbers  of  each  cask,  bag,  box,  chest,  or  package 
containing  the  same,  with  the  name  of  the  shipper 


COASTING  TRADE. 


53 


or  consignee  of  each,  such  manifest  must  be  by 
him  exhibited,  for  the  inspection  of  any  officer  of 
the  revenue,  when  thereunto  required.  He  must 
also  inform  such  officer  from  whence  such  vessel 
last  sailed,  and  how  long  she  has  been  in  port.  If 
the  master  be  not  provided,  on  his  arrival,  with  a 
manifest  and  exhibit  the  same  when  required,  if 
the  lading  consists  wholly  of  goods  the  produce 
or  manufacture  of  the  United  States,  (distilled 
spirits  excepted,)  he  forfeits  $20;  or  if  there  be 
distilled  spirits  or  goods  of  foreign  growth  or  manu- 
facture on  board,  excepting  sea  stores,  he  forfeits 
$40;  or  if  he  refuse  to  answer  the  interrogatories 
truly,  he  forfeits  $I00.# 

If  any  of  the  goods,  not  included  in  the  manifest, 
are  of  foreign  growth  or  manufacture,  or  of  spirits 
distilled  within  the  United  States,  so  much  thereof 
are  forfeited  to  the  United  States. f 

Loss  of  Manifest.  If  the  master  of  a licensed 
coasting  vessel,  as  above,  has  mislaid  or  lost  the 
certified  manifest  before  mentioned,  or  the  permit 
that  was  given  therefor,  he  cannot  land  the  cargo 
laden  on  board  until  bonds  be  given  to  secure 
the  payment  of  the  duty  upon  all  such  parts  of  the 
cargo  as  are  of  foreign  growth  or  manufacture,  or  of 
spirits  distilled  within  six  months,  in  the  same 
manner  as  if  they  were  imported  from  a foreign 
country.  Such  bond  is  cancelled  by  the  master’s 
either  recovering  the  lost  manifest,  or  by  procu- 
* Act  18ih  Feb.  1793,  Sec.  18.  t Ibid.  Sec.  18. 

*5 


54 


COASTING  TRADE. 


ring  a certificate  from  the  collector  of  the  port 
from  whence  the  cargo  was  shipped,  that  such 
goods  were  legally  exported  in  such  vessel.* 

Alien  vessels.  The  master  of  a foreign  vessel, 
bound  from  a district  in  the  United  States  to  any 
other  district  within  the  same,  must,  previous  to 
her  departure,  deliver  to  the  collector  duplicate 
manifests  of  the  lading  on  board,  or  if  there  be 
none,  he  must  so  declare  ; and  to  the  truth  of  such 
manifests,  or  declaration,  he  must  swear,  or  affirm; 
and  also,  obtain  a permit  from  the  collector  authori- 
zing him  to  proceed  to  his  place  of  destination 
The  master  of  every  such  vessel  on  his  arrival 
within  any  district  from  any  other  district,  must, 
within  forty-eight  hours  after  his  arrival,  and  pre- 
vious to  unlading  any  goods,  deliver  to  the  collec- 
tor of  the  district  a manifest  of  the  goods  on  board, 
or  if  in  ballast  only,  he  must  so  declare,  and  to  the 
truth  of  which  manifest  he  must  swear  or  affirm; 
and  also,  that  such  manifest  contains  an  account  of 
all  the  goods  which  were  on  board  of  the  vessel  at 
that  time,  or  have  been  since  her  departure  from 
the  place  whence  she  sailed. 

He  must  also  deliver  to  the  collector  the  permit 
which  was  given  him  by  the  collector  of  the  dis- 
trict. If  the  master  neglects  so  to  do,  he  forfeits 
$100. 


*Act  18th  Feb.  1793,  Sec.  23. 


flbid  Sec.  24. 


FISHERY. 


55 


CHAPTER  VI. 

OF  VESSELS  ENGAGED  IN  THE  FISHERY. 

Government  allows  a bounty  to  vessels  of  the 
burthen  of  five  tons  and  upwards,  which  are  engaged 
in  the  bank  and  other  cod  fisheries.  This  bounty 
was,  among  other  things,  undoubtedly  intended  as 
an  inducement  to  capitalists,  to  provide  suitable 
vessels  for  carrying  on  this  very  useful,  and  now 
highly  prosperous,  line  of  business.  The  policy 
and  wisdom  of  the  measure,  it  is  now  too  late  to 
question.  Under  its  influence  our  fisheries  have 
become  very  important,  not  only  as  furnishing  em- 
ployment to  a large  class  of  hardy,  industrious  citi- 
zens, but  as  a means  of  individual  and  national 
wealth.  Every  year  witnesses  its  rising  impor- 
tance. 

This  bounty  is  paid  to  them  on  the  last  day  in 
December  of  each  year.  It  is  paid  hy  the  collec- 
tor of  the  port  where  the  vessel  belongs.  The 
vessel  to  be  entitled  to  bounty,  must  be  engaged 
at  least  four  months  in  the  bank  and  other  cod 
fishery,  and  that,  too,  in  the  fishing  season,  which 
is  between  the  last  days  of  February  and  of 
November  in  each  year.  A vessel  of  the  burthen 
of  five  and  more  tons,  and  not  exceeding  thirty, 
receives  $3,50  per  ton  for  each  ton  of  her  measure- 


56 


FISHERY. 


ment  as  ascertained  by  her  enrollment.  If  the  ves- 
sel is  over  thirty  tons  in  burthen,  the  bounty  is  $4 
per  ton.  If,  however,  this  latter  class  of  vessels,  or 
any  one  of  them,  have  on  board  a crew  of  not  less 
than  ten  persons,  and  have  actually  been  employed 
in  the  cod  fishery  at  sea,  for  the  term  of  three  and  one 
half  months , but  less  than  four  months  of  such 
season,  the  owner  thereof  is  entitled  to  a bounty  of 
$3,50  per  ton.* 

No  vessel,  however,  can  receive  an  allowance  for 
bounty  to  a greater  amount  than  $360  for  any  one 
year. 

When  the  vessel  exceeds  twenty  tons  in  burthen, 
the  owner  is  entitled  to  retain  three-eights  of  the  sum 
so  received  as  bounty,  and  the  other  five-eights  he 
must  destribute  among  the  several  fishermen  that 
have  been  employed,  during  the  fishing  season,  on 
board  ; each  fisherman  drawing  his  share  of  the 
sum,  so  remaining,  in  exact  proportion  as  his  share 
of  the  fish  caught,  bears  to  the  whole  amount  of 
fish  caught  by  the  whole  crew.f 

For  example,  suppose  $100  remains  to  be  divi- 
ded in  that  manner  among  a crew  of  five  persons, 
having  unequal  claims.  A.  having  caught  10  bbls. 
B.  13  bbls.,  C.  17  bbls.,  D.  20,  and  E.  only 
54  bbls. — Total  654  bbls.  As  the  654  bbls.,  is  to 
10  bbls.  A’s  part,  so  is  the  $100,  the  fund  to  be  divi- 
ded, to  A’s  proportion  of  said  fund.  The  product  is 
A’s  part.  B.  C.  D.  and  E’s  proportions  may  then 
be  obtained  in  the  same  manner. 

♦Act  July  29,  J813,  Sec.  5.  f Ibid. 


FISHERY. 


57 


Previous  to  receiving  such  bounty,  the  owner  of 
the  vessel,  if  she  be  of  twenty  tons  and  upwards, 
must  produce  to  the  collector,  authorized  to  pay 
the  same,  the  origina  agreement  made  with  the 
fishermen  employed  on  board,  and  a certificate  sub- 
scribed by  him,  setting  forth  the  particular  days  on 
which  such  vessel  sailed  and  returned. 

If  the  master  of  any  fishing  vessel,  of  twenty  tons 
and  upwards,  neglects  to  enter  into  a written  or 
printed  agreement  with  the  fishermen  employed  on 
board,  the  vessel  will  not  be  entitled  to  bounty. 

Fishing  vessels  of  more  than  five  and  less  than 
twenty  tons  burthen  are  entitled  to  a bounty,  as  be- 
foresaid,  of  $3,50  per  ton,  on  condition  that  they  land 
in  the  course  of  the  preceding  season  a quantity  of 
fish,  not  less  than  twelve  quintals  for  every  ton  of 
their  admeasurement.  The  weight  is  to  be  ascer- 
tained when  dried  and  cured  fit  for  exportation. 

This  bounty,  when  thus  received,  is  to  be  ac- 
counted for  as  a part  of  the  proceeds  of  the  fares 
of  such  vessel,  and  distributed  among  those  em- 
ployed on  board  accordingly.  An  account  of  the 
weight,  with  the  original  adjustment  of  the  fares 
among  the  owners  and  fishermen,  together  with  a 
written  account  of  the  length,  breadth,  and  depth 
of  such  boat,  and  the  time  she  has  actually  been 
employed  in  the  fishery,  in  the  preceding  season, 
must,  in  all  cases,  be  produced  and  sworn  to  before 
the  collector,  in  order  to  entitle  the  owner  to 
an  allowance  of  bounty. 


58 


FISHERY. 


If  any  fraud  is  made  use  of  in  the  procurement 
of  the  bounty,  the  vessel  is  liable  to  be  forfeited  if 
found  within  the  district  to  which  she  belongs, 
within  one  year  from  the  time  payment  was  made. 
Otherwise  the  owner,  having  practiced  such  deceit, 
must  forfeit  and  pay  $100.  False  declarations 
under  this  act  are  deemed  and  punished  as  perjury. 

When  a fishing  vessel  has  completed  her  fishing 
term  and  has  thereby  become  entitled  to  bounty, 
and  afterwards,  on  her  passage  home,  is  wrecked  or 
lost,  her  owner  and  crew  may,  on  satisfactory 
proof  being  furnished  to  the  comptroler  of  the  treas- 
ury, of  the  wreck  or  loss  of  such  vessel,  be  enti- 
tled to  the  same  bounty  as  would  have  been  allow- 
ed had  no  loss  taken  place. 

The  officers,  and  three-fourths  of  the  crew,  at 
least,  of  every  fishing  vessel  must  be  American 
citizens,  or  persons  not  the  subjects  of  any  foreign 
prince  or  state. 

The  master,  or  skipper,  of  any  vessel  of  the 
burthen  of  twenty  tons  or  upwards,  engaged  in  the 
bank  and  cod  fisheries,  bound  from  a port  of  the 
United  States,  to  be  engaged  in  such  fishery,  at  sea, 
must,  before  proceeding  on  such,  voyage,  make  an 
agreement  in  writing,  or  print,  with  every  fisher- 
man employed  therein,  (except  only  an  apprentice, 
or  servant,  of  himself,  or  owner)  and  in  addition  to 
such  term  of  shipment  as  may  be  agreed  on,  must, 
in  such  agreement,  express  whether  the  service  is 
to  continue  for  one  voyage,  or  for  the  fishing  sea- 


FISHERY. 


59 


son.  It  must  also  be  expressed  in  such  agreement, 
that  the  fish,  or  the  proceeds  of  such  fishing  voy- 
age, which  may  belong  to  the  fishermen,  shall  be 
divided  among  them  in  proportion  to  the  quantities 
or  number  of  fish  which  they  may  have  respec- 
tively caught.  This  agreement  must  be  endorsed, 
or  countersigned,  by  the  owner  of  such  fishing 
vessel,  or  his  agent.* 

Fishermen,  who  have  engaged  for  the  voyage, 
or  for  the  season,  and  signed  the  articles,  and  after- 
wards have  deserted  from  the  vessel  while  the 
agreement  remained  in  force,  are  liable  to  the  same 
forfeitures,  and  penalties  as  deserting  seamen  and 
mariners.  They  may,  also,  upon  like  complaint 
and  proof,  be  apprehended  and  detained  in  the 
same  manner.  All  costs  of  commitment  and  of  pro- 
cess, if  paid  by  the  master,  may  be  deducted  out 
of  the  share  of  such  deserting  seamen. 

If  any  fisherman,  shipped  as  above,  refuse,  or 
neglect  to  do  his  proper  duty  on  board  the  fishing 
vessel,  when  ordered  thereto  by  the  master  ; or 
otherwise  resist  his  just  and  lawful  authority,  to 
the  detriment  of  such  voyage,  he  forfeits  to  the  use 
of  the  owner  of  such  vessel,  his  share  of  the  pub- 
lic allowance,  or  bounty,  which  he  otherwise  might 
have  been  entitled  to.  He,  also,  is  liable  for  the 
damage  which  may  ensue  from  such  disobedience. f 


*Act  19  June  1813,  Sec.  1. 


f Ibid. 


60 


FISHERY. 


Where  the  fishermen  deliver  their  fish  to  the 
owner  of  the  vessel,  or  his  agent,  for  the  purpose 
of  having  them  cured  by  him,  and  such  owner,  or 
agent,  sell,  or  otherwise  dispose  of  them  to  the 
injury  of  such  fishermen,  the  vessel  is  answerable 
for  their  respective  shares  for  six  months  after  their 
sale.  It  is  recoverable  in  the  same  manner  as  sea- 
men’s wages.* 

The  owner,  or  his  agent,  must  produce  a just 
account  of  the  sales  and  division  of  the  fish  taken, 
according  to  such  agreement  ; otherwise  the  vessel 
is  answerable  for  what  may  be  the  highest  value  of 
the  share,  or  shares,  demanded.  The  owner,  how- 
ever, may  always  offset  any  demands  he  may  have 
against  any  of  the  fishermen  employed  on  board  of 
his  vessel,  for  supplies  furnished  them  for  the  pur- 
poses of  the  voyage. f 

Convention  with  Great  Rritian  respecting  fishing 
grounds.  By  a convention  entered  into  between 
the  United  States  and  the  British  government, 
Oct.  20,  1818,  it  is  agreed  that  the  inhabitants  of 
these  United  States  may  have  in  common  with 
British  subjects,  liberty  to  take  fish  of  every  kind 
on  that  part  of  the  southern  coast  of  Newfoundland, 
which  extends  from  cape  Ray  to  the  Rameau 
islands ; on  the  western  and  northern  coast  of 
Newfoundland  from  the  said  cape  Ray  to  the 
Quirpon  islands  ; on  the  shores  of  the  Magdalen 
islands;  and  also  on  the  coasts,  bays,  harbors,  and 
*Act  19  June  1813,  Sec.  2.  f Ibid.  Sec.  2. 


FISHERY. 


61 


creeks,  from  mount  Joly , on  the  southern  coast  of 
Labrador,  to  and  through  the  straits  of  Bellisle, 
and  thence  northwardly,  indefinitely,  along  the 
coast.  This  grant,  however,  is  not  to  prejudice  any 
of  the  exclusive  privileges  possessed  by  the  Hud- 
son Bay  Company.  The  American  fishermen,  also, 
have  a right  to  dry  and  cure  fish  in  any  of  the 
unsettled  bays,  harbors,  and  creeks  of  the  southern 
part  of  the  coast  of  Newfoundland,  above  described, 
and  of  the  coast  of  Labrador.  When  any  part  of 
the  coast  becomes  settled,  the  fishermen  must  first 
obtain  the  permission  of  the  owners  of  the  land. 
The  American  fishermen  have  permission  to  enter 
any  of  the  bays  or  harbors  in  the  British  dominions 
for  the  purpose  of  shelter,  and  of  repairing  damages 
therein,  of  purchasing  wood,  and  of  obtaining 
water,  and  for  no  other  purpose  whatever. 


6 


62 


SHIP  OWNERS 


CHAPTER  YII. 

SHIP  OWNERS. 

Who  are  liable  as  owners. 

The  owner  of  the  ship  is,  in  all  cases,  personally 
liable  for  necessaries  furnished,  and  repairs  made, 
by  order  of  the  master.*  Tt  is  not,  however,  al- 
ways a matter  easily  to  be  determined  who  is  the 
owner.  The  ownership  in  relation  to  this  subject 
is  not  determined  by  the  register  : nor  will  a regular 
bill  of  sale  of  the  property,  in  all  cases,  exem;  t the 
former  owner  from  responsibility  for  supplies  fur- 
nished.f 

Hence  the  mortagagee  of  a ship,  who  merely 
holds  the  legal  title  for  his  security,  and  neither 
appoints  her  commander,  nor  participates  in  the 
profits  of  the  adventure,  is  not  liable  as  owner  on 
the  contracts,  or  for  the  conduct  of  the  master.t 
But  if  the  mortgagee  of  a ship  appoints  her  mas- 
ter and  crew,  and  the  vessel  is  employed  in  his 
service,  he  then  is  responsible  for  the  contracts  and 
conduct  of  the  master.  The  question  is,  to  whom 
was  the  credit  given : and  if  the  mortgagee  has,  by 
his  own  acts,  held  himself  out  as  owner,  so  that  the 

# 4 Barnw.  & Aid.  352.  f 7 Jolm.  30S,  15  John.  298.  7 Coweus, 
R.  697.  | 8 John.  R.  159,  15  Mass.  R.  477,  6 Greenleaf.  474. 


SHIF  OWNERS. 


63 


creditor  may  have  fairly  been  presumed  to  have 
parted  with  his  property  on  the  strength  of  the 
credit  of  the  mortgagee,  he  is  responsible. 

Charterer.  The  charterer  of  a vessel,  for  a cer- 
tain period  or  voyage,  and  who  appoints  her  com- 
mander and  crew,  is  considered  the  owner  for  that 
period  or  voyage,  and  is  therefore  liable  for  neces- 
saries furnished  on  the  order  of  the  master  for  the 
use  of  the  ship. 

But  when,  notwithstanding  the  charter  cf  the 
vessel,  the  general  owner  retains  possession,  and 
appoints  her  master,  the  charterer  is  not  liable  as 
owner.* 

The  question,  who  is  liable  to  third  persons  for 
repairs  made  or  necessaries  furnished  on  the  order  of 
the  master,  for  the  use  of  the  ship,  depends  on  the 
inquiry,  v, Tether  the  lender,  or  hirer,  under  a char- 
ter party,  has  the  possession,  command,  and  naviga- 
tion of  the  ship.* 

To  constitute  the  charterer  owner  for  the  voy- 
age, so  as  to  charge  him, -he  should  have  the  pos- 
session and  entire  control  and  direction'cf  the  ves- 
sel ; so  that  the  general  owner,  for  the  time  being 
woulch have  no  right  to  interfere  with  her  manage- 
ment.f 

Lien.  If  the  owner  retains  possession,  and  vict- 
uals and  mans  the  vessel,  he  has  a lien  upon  the 
cargo  of  the  charterer  shipped  on  board  for  its 
freight. 

*S  Craiich  R.  39.  Kent,  Corn’s.,  Vol.  3,  p.  133.  15  Mass.  E.  372. 
t 4 Greenleaf,  412. 


64 


SHIP  OWNERS. 


But  where  the  charterer  takes  possession.,  and 
navigates  the  ship,  the  general  owner  has  no  lien 
for  the  freight,  because  he  is  not  the  carrier  for 
the  voyage. 

If  the  owner  of  a vessel  charters  her  to  the  mas- 
ter for  a certain  period  of  time,  the  master  cove- 
nanting to  victual  and  man  her  at  his  own  cost,  he 
is  to  be  deemed  the  owner  for  that  term.* 

Of  the  rights  and  liabilities  of  part  owners. 

The  several  part  owners  of  a ship  are  tenants  in 
common.  Each  has  his  distinct  though  undivided 
interest ; and  when  one  of  them  is  appointed  to 
manage  the  concerns  of  the  ship  for  the  common 
benefit,  he  is  termed  the  ship’s  husband. f 
Part  owners  are  never  considered  and  treated  in  law 
as  partners,  unless  they  make  themselves  partners 
by  some  special  acts  of  their  own.  One  part  owner 
has  no  authority  to  dispose  of  a share  greater  than 
he  actually  holds  in  the  ship.  But  if,  by  their 
acts,  they  have  constituted  themselves  partners, 
then  any  one  of  them  can  dispose  of  the  whole 
ship. 

As  the  law  presumes  that  the  common  possessor 
of  a valuable  chattel  will  desire  whatever  is  neces- 
sary to  the  preservation  and  profitable  employment 
of  the  common  property,  part  owners,  on  the  spot, 

* 8 J.  R.  272.  f Kent’s  Corn’s,  vol.  3.  p.  151. 


SHIP  OWNERS. 


65 


have  an  implied  authority  from  the  absent  part 
owners,  to  order,  for  the  common  concern,  whatever 
is  necessary  for  the  preservation  and  proper  employ- 
ment of  the  ship. 

If,  however,  the  credit  is  given  exclusively  to 
the  ship’s  husband,  or  part  owner,  who  ordered  the 
supplies,  and  his  note  is  taken  for  the  amount,  the 
creditor  cannot  afterwards  repudiate  the  note  and 
call  upon  the  other  part  owners  for  payment.  By 
taking  the  note,  he  discharges  the  other  owners.* 
The  reverse  of  this  has  been  held  in  New  York. 

Where  repairs  are  made  upon  a ship  by  order  of 
the  master,  the  part  owners  are  each  liable  for  the 
whole  expense  of  the  repairs.  So  when  the  re- 
pairs are  ordered  by  the  ship’s  husband,  or  by  one 
of  the'  part  owners  in  person. f 

Where  a part  owner  pays  the  whole  bill  for  re- 
pairs, or  more  than. his  proportion/he  can  call  upon 
the  remaining  part  owners  for  contribution. 

While  the  ship  continues  to  be  employed  by  the 
same  persons,  no  one  of  them  can  be  entitled  to 
partake  of  the  profits  until  all  that  is  due,  for  out- 
fits for  the  voyage,  repairs,  &c.  has  been  dis- 
charged.! 

In  a case  reported  in  Cowper,  469,  it  was  more 
than  intimated  that  one  part  owner  might  have  a 
lien  for  advances  made  for  another  part  owner  upon 
his  share  in  the  ship,  in  the  same  manner  as  jpart- 

# 10  Mass.  R.  47.  f 16  Johnson’s,  R.  89.  Abbott,  note,  p.  76 
f Abbott,  p.  94. 

6* 


66 


SHIP  OWNERS. 


ners  in  trade  have  upon  each  others  shares  of  their 
merchandise.* 

While  the  possession  of  a ship  is  retained  by  the 
person  who  repairs  her,  it  is  specifically  chargeable 
for  repairs  ; but  when  the  possession  is  parted  with, 
the  lien  is  lost.f 

One  part  owner  has  no  authority  to  effect  insu- 
rance for  another  part  owner  on  his  share  of  a ves- 
sel, and  the  part  owner  thus  insured  for  will  not  be 
bound  to  pay  the  premium  note,  unless  he  either 
previously  directed,  or  subsequently  assented  to, 
the  insurance. J 

Employment  of  the  ship.  If  there  be  no  cer- 
tain agreement  among  the  owners  of  a ship  respect- 
ing her  employment,  and  they  are  unable  to  agree 
upon  a voyage,  the  court  of  admiralty  will,  upon 
application,  authorize  the  majority  in  value  of  the 
part  owners  to  employ  the  ship  upon  their  own 
account,  and  for  their  own  particular  benefit,  first 
giving  the  minority  security  to  the  value  of  their 
shares,  for  the  safe  return  of  the  vessel. 

This  practice  of  the  admiralty  courts  is  dictated 
by  the  plain  reason  that  “ ships  were  made  to  plough 
the  ocean,  and  not  to  rot  by  the  wall.” 

If  the  minority  are  in  possession,  and  refuse  to 
give  the  vessel  up,  or  to  employ  her.  the  majority 
can  obtain  possession  by  application  as  above : and 
if  the  majority  are  in  possession  and  choose  to  em- 
ploy her  upon  an  adventure,  not  sanctioned  by  the 

* 20  Johns.  R.  634.  -f  11  Mass.  R,  34.  £ Abbott,  p.  76,  note. 


SHIP  OWNERS. 


6? 


minority,  the  latter  can  procure  a warrant  for  the 
arrest  of  the  ship,  and  unless  security  is  given  by 
the  majority  for  the  value  of  their  shares,  detain 
her. 

Though  the  admiralty  courts  have  thus  claimed 
and  exercised  this  very  salutary  jurisdiction  over  the 
rights  of  part  owners,  substantially  securing  to  each 
the  honest  exercise  of  their  right  to  the  use  of  their 
property,  when  consistent  with  the  rights  of  others, 
yet  they  have  refrained  from  exercising  any  power 
over  obstinate  part  owners,  to  compel  a sale  by 
them  of  their  shares. 


68 


ship’s  husband. 


CHAPTER  VIII. 
ship’s  husband. 

Ti-ie  difficulty  of  administering,  with  unanimity, 
the  affairs  of  a ship  belonging  to  many  owners, 
leads  to  the  appointment  of  some  person  in  whom 
they  all  have  confidence  as  ship's  husband.  Some- 
times the  ship’s  husband  is  merclj^  an  agent  for 
conducting  the  necessary  measures  on  the  return  of 
the  ship  to  port  : as  making  the  proper  entries  at 
the  custom  house  from  the  master’s  manifest ; 
superintending  the  landing  of  the  goods  ; checking 
the  measurements;  procuring  the  proper  surveys  of 
damages,  to  avoid  disputes  ; seeing  the  freight  set- 
tled before  the  lien  is  quitted,  and  so  forth.  But 
the  appointment  to  which  our  attention  is  here 
called  is  one  of  more  importance.  It  is  a more 
general  agency  for  conducting  the  affairs  of  the 
vessel  in  place  of  the  owners.  The  person  so  ap- 
pointed is  empowered  to  enter  into  contract  for 
furnishing;  to  appoint  the  master  and  seamen ; to 
enter  into  charter  parties ; and.  generally,  to  act  as 
sole  representative  of  the  owner. 

Who  may  be  a ship's  husband.  The  ship’s  hus- 
band may  either  be  a part  owner  or  a stranger:  and 
the  authority  may  be  conferred  either  by  express 
deed  or  commission  ; or  even  without  a written 


ship’s  husband. 


69 


commission,  by  verbal  appointment,  or  permitting 
him  to  exercise  the  functions  of  ship’s  husband,  so 
as  to  give  him  the  character  of  accredited  agent  of 
the  owners. 

How  appointed.  Where  he  is  appointed  by 
written  commission,  that  commission  must  be  exe- 
cuted by  all  the  joint  owners.  It  may  refer  gene- 
rally to  the  customary  powers  and  duties  of  the 
ship’s  husband  ; and  where  special,  should  empower 
the  agent  to  regulate  the  appointment  of  the  master 
and  the  hire  of  seamen,  to  make  contracts  of  fur- 
nishing and  affreightment  ; to  levy  freights,  pay 
wages,  make  the  necessary  disbursements  on  ac- 
count of  the  ship,  and  generally,  to  act  discre- 
tionarily  for  all  the  owners'. 

It  is'  chiefly  in  case  of  one  of  the  joint  owners 
taking  the  management,  that  the  powers  of  ship’s 
husband  are  constituted  without  written  authority* 
But  both  in  that  case,  and  even  where  a stranger 
exercises  the  powers  of  a ship’s  husband,  they  will 
be  bound  to  reimburse  and  recompense  him ; and 
his  contracts  in  the  proper  line  of  a ship’s  husband’s 
duty  will  bind  them ; provided  the  nomination,  or 
the  accrediting  of  the  ship’s  husband,  be  proved. 

The  duties  of  a ship's  husband  are — 1.  To 
see  to  the  proper  outfit  of  the  vessel,  in  the  re- 
pairs adequate  to  the  voyage,  and  in  the  tackle  and 
furniture  necessary  for  a sea-worthy  ship.  2.  To 
have  a proper  master,  mate  and  crew,  for  the  ship, 
so  that  in  this  respect  she  shall  be  sea-worthy.  3. 


70 


ship’s  husband. 


To  see  to  the  due  furnishing  of  provisions  and 
stores,  according  to  the  necessities  of  the  voyage. 
4.  To  see  to  the  regularity  of  all  the  clearances 
from  the  custom  house,  and  the  regularity  of  the 
registry.  5.  To  settle  the  contracts,  and  provide 
for  the  payment  of  the  furnishings  which  are  requi- 
site in  the  performance  of  those  duties.  6.  To 
enter  into  proper  charter  parties,  or  engage  the  ves- 
sel for  general  freight,  under  the  usual  conditions  ; 
and  to  settle  for  freight  and  adjust  averages  with 
the  merchants : and  7.  To  preserve  the  proper  cer- 
tificates, surveys  and  documents,  in  case  of  future 
disputes  with  insurers  or  freighters,  and  to  keep 
the  regular  books  of  the  ship. 

Power  of  a ship’s  husband.  His  powers,  where 
not  expressly  limited,  may  he  described  as  those 
requisite  to  the  performance  of  the  duties  above 
enumerated.  He  cannot,  without  special  powers, 
borrow  money  generally  for  the  use  of  the  ship  : 
though  he  may  settle  the  accounts  of  the  creditors 
for  furnishings,  or  grant  bills  for  them,  for  debts 
against  the  concern,  whether  he  has  funds  in  his 
hands  or  not  with  which  he  might  have  paid  them. 
He  has  power  to  receive  the  freight,  but,  it  would 
seem,  he  has  not  power  to  take  bills  for  the  freight, 
or  surrender  up  the  cargo  and  thus  destroj-  the  lien 
upon  it,  unless  it  be  expressly  provided  for  in  the 
charter  party,  or  unless  he  has  special  authority  to 
grant  such  indulgence.  Under  the  general  au- 
thority of  ship’s  husband,  he  has  no  authority  to 


ship’s  husband. 


71 


insure,  or  to  bind  the  owners  for  premiums;  this 
requiring  special  authority.  The  authority  of  the 
master  as  to  the  employment,  repair,  or  direction  of 
the  ship,  is  superseded  by  the  presence  of  the  ship’s 
husband. 


72 


AGENTS. 


CHAPTER  IX. 

AGENTS. 

Of  the  duty  of  Agents  to  procure  Insurance. 

A very  frequent  and  usual  method  of  procuring 
insurance  upon  vessel,  freight,  or  cargo,  is,  by  trans- 
mitting an  order,  for  such  insurance  to  be  made,  to 
some  agent  of  the  party  owning  the  property. 
That  these  orders,  thus  forwarded,  should  be 
promptly  executed,  is  often  of  the  greatest  mo- 
ment. It  becomes,  then,  a proper  subject  of  inqui- 
ry, how  far  the  person  selected  to  act  as  agent  in 
such  matter,  is  hound  to  execute  the  commission 
entrusted  to  him. 

One  principle  is  plain,  that  every  agent  is  bound 
to  execute  the  orders  of  his  principal,  whenever,  for 
a valuable  consideration,  he  has  undertaken  to  per- 
form them.  And  this  duty  may  appear  from  ex- 
press agreement,  or  by  clear  implication.  The 
former  does  not  need  to  be  treated  upon. 

Who  may  insure.  The  merchant,  or  factor,  to 
whom  the  goods  are  consigned  for  him  to  sell,  may 
insure  them,  both  for  himself  and  his  principal. 
He  is  not,  however,  positively  bound  to  insure,  un- 
less he  has  received  orders  to  insure,  or  the  usage 
of  trade,  or  mode  of  dealing  between  them,  raises 
an  implied  obligation  to  insure.* 

* Story  on  Agency,  p.  99. 


INSURANCE. 


73 


Whether  mere  naked  consignees,  who  have  the 
goods  [consigned  to  them  without  power  to  sell, 
have  a right  to  insure  for  themselves,  or  their  prin- 
cipals, is  yet  a question. 

Who  must  insure.  It  has  been  before  stated 
that,  where  an  agent  has  expressly  contracted  to 
insure,  he  must  insure,  or  suffer  the  damage  that 
may  ensue  to  his  principal. 

It  is,  also,  clearly  settled  that,  where  a merchant 
abroad  has  effects  in  the  hands  of  his  correspondent 
here,  he  may  order  him  to  insure ; and  the  corre- 
spondent so  ordered  must  effect  the  insurance  as 
directed.* 

So,  too,  where  the  merchant  has  no  effects  in 
the  hands  of  his  correspondent,  yet  the  course  of 
dealing  between  them  has  been  such  that  the  one 
has  been  used  to  send  orders  for  insurance,  and  the 
other  to  comply  with  them  ; in  such  a case,  the 
former  has  a right  to  expect,  that  his  orders  for  in- 
surance will  still  be  obeyed  unless  the  latter  gives 
him  notice  to  discontinue  that  course  of  dealing. f 

Another  is,  where  the  merchant  abroad  sends 
bills  of  lading  to  his  correspondent  here,  and  in- 
grafts on  them  an  order  to  insure  ; in  such  a case 
the  agent  is  bound  to  obey,  if  he  accepts  them. 

Another  may  be  added,  which  is,  where  the  gen- 
eral usage  of  trade  requires  the  agent  to  insure. J 

When  an  agent  is  ordered , or  bound , to  procure 

* Story  on  Agency,  pp.  178  and  179. 

7 


t Ibid. 


$ Ibid. 


74 


INSURANCE. 


insurance  for  his  principal,  and  from  any  cause  can- 
not effect  it,  it  seems  reasonable  that  he  should  be 
required  to  give,  as  soon  as  practicable,  intelligence 
of  such  inability,  for  otherwise  the  principal  may 
be  subjected  to  a loss,  which  he  could  have  provi- 
ded against,  by  procuring  insurance  to  be  made 
elsewhere.* 

Agent  bound  to  use  due  diligence.  If  the  agent 
is  bound  to  procure  insurance,  or  undertakes  to  do 
it,  he  must  use  due  diligence.  If  he  procrastinates 
and  neglects  to  effect  the  insurance  in  a reasonable 
time  after  notice  to  him,  or  undertaking  by  him, 
and  a loss  ensue  to  his  principal,  he  is  liable.  What 
is  a proper  exercise  of  due  diligence  and  skill  in  ob- 
taining insurance,  is,  in  some  cases,  a matter  of 
great  nicety  and  difficulty. 

On  the  one  hand,  an  agent,  who  acts  bona  fide 
in  effecting  an  insurance  for  his  principal,  using 
reasonable  skill  and  diligence,  is  not  liable  to  be 
called  upon,  because  the  insurance  might  possibly 
have  been  procured  from  other  persons  upon  better 
terms,  or  to  include  additional  risks,  by  which  the 
principal  might,  in  the  event,  have  been  indemni- 
fied.! 

On  the  other  hand  an  agent,  in  a like  case,  is 
bound  to  have  inserted  in  the  policy  all  the  ordi- 
nary risks  and  chances  which  are  usual  and  proper 
to  secure  the  principal  for  the  contemplated  voy- 
age-! 

# Story  on  Agency,  pp.  I7S  and  179.  f Ibid.  179.  + Ibid. 


AUTHORITY  OF  AGENTS. 


75 


And  if  he  omits  to  have  them  inserted  when  a 
reasonable  attention  to  the  facts  stated  in  his  orders, 
or  the  nature  of  the  voyage,  or  the  state  of  the  prop- 
erty, or  the  objects  intended,  would  have  induced 
other  insurance  agents,  of  reasonable  skill  and  dili- 
gence to  have  had  them  inserted,  he  will  be  liable, 
in  case  of  any  loss,  for  his  negligence.* 

The  same  rule  will  apply,  if  such  an  agent  neg- 
ligently, or  wilfully,  conceals  a material  fact, 
or  affirms  a false  fact,  whereby  the  policy  is  avoid- 
ed ; for  his  duty  in  each  case  is  violated. f 

The  agent,  procuring  insurance,  is  bound  to  use 
proper  diligence  to  ascertain  whether  or  not  the  un- 
derwriters are  in  good  credit  at  the  time  of  procur- 
ing the  policy. t 

So  if  an  agent  has  procured  a policy  and  it  re- 
mains in  his  hands,  ho  is  bound  to  apply  to  the  un- 
derwriters for  payment  of  it  within  a reasonable 
time  ; and  if  a loss  occurs  by  his  neglect,  he  will 
become  responsible  therefor. 

Of  the  cmthority  of  Agents. 

Of  their  authority  to  abandon  property  on  which 
they  have  procured  insurance  to  be  effected,  it  may 
be  said,  that  they  have  an  incidental  authority  to 
abandon  property  which  is  insured,  to  the  under- 
writers, in  the  case  of  a total  loss. 


* Story  on  Agency,  p.  180. 
$ 1 Yalin.  lib.  p.  33. 


f Ibid.  180. 
§ 6 Cranch  268,  272. 


76 


AUTHORITY  OF  AGENTS. 


So  an  agent,  to  insure,  has,  if  the  policy  remains 
in  his  hands,  an  incidental  authority  to  receive  pay- 
ment of  losses  thereon.* 

So  an  agent  employed  to  subscribe  a policy  for 
the  principal,  has  an  implied  authority  to  adjust  the 
loss  upon  the  same  policy  ; and  to  receive  payment 
in  money ; but  not  to  receive  payment  in  any 
other  manner. f 

So  an  agent  employed  to  buy  a cargo  for  his 
principal,  if  no  other  means  or  funds  are  provided, 
has  an  incidental  authority  to  give  notes,  or  draw 
and  negotiate  bills  on  his  principal  for  the  amount. % 

If  the  agent  has  procured  insurance  for  his  prin- 
cipal and  paid  the  premium  himself,  and  it  after- 
wards appears  that  the  policy  never  attached,  or 
was  void  without  his  knowledge,  he  will  be  ena- 
bled to  recover  back,  in  his  own  name,  the  pre- 
mium he  thus,  without  consideration,  paid.$ 


* 2 Cowp.  R.  641. 
\ 6 Louis  R.  587. 


f 1 Cowp.  R.  43. 
6 6 Wheat.  565. 


FACTORS  OR  CONSIGNEES. 


77 


CHAPTER  X. 

OF  FACTORS  OR  CONSIGNEES. 

The  factor  is  most  often  known  by  the  term 
commission  merchant  or  consignee.  He  is  em- 
ployed to  sell  goods  or  merchandise,  consigned,  or 
delivered  to  him,  by,  or  for  his  principal,  for  a com- 
pensation, commonly  called  factorage  or  commis- 
sion. The  goods  received  by  him  for  sale  are 
called  a consignment.  Generally  the  factor  or  con- 
signee is  a person  living  abroad  ; or  at  a distance 
from  his  principal.  But  such  need  not  be  the  case 
The  relation  may  as  well  subsist  between  neigh- 
bors as  any  others,  only  that  the  necessity  for  such 
a relation  between  them  does  not  often  exist. 
There  are  different  sorts  of  consignees  : some  have 
a power  to  sell,  manage  and  dispose  of  the  property, 
subject  only  to  the  rights  of  the  consigner.  Others 
have  a mere  naked  right  to  take  possession. 

A factor  is  called  a home  factor  when  he  resides 
in  the  same  state  or  country  with  the  principal ; 
and  a foreign  factor  when  he  resides  in  a different 
state  or  country.  Sometimes,  in  voyages  abroad, 
an  agent  accompanies  the  cargo,  to  whom  it  is  con- 
signed for  sale  : and  who  is  to  purchase  the  return 
cargo  out  of  the  proceeds.  In  such  case  the  factor, 
or  consignee,  is,  usually,  called  a supercargo. 

j* 


78 


FACTORS  OR  CONSIGNEES. 


The  relation  of  consignor  and  consignee , may  be 
created  by  an  express  instrument  of  agreement  be- 
tween the  parties,  or  by  the  mere  transmission  of 
the  bill  of  lading  or  invoice  of  the  goods,  with  a 
letter  of  instruction  from  the  consignor  to  the 
consignee.  If  he  accepts  the  bill  of  lading  or  in- 
voice, so  sent,  he  is  bound  to  all  the  duties,  and 
liable  to  all  the  obligations,  of  a consignee. 

When  the  consignee  undertakes,  for  an  additional 
compensation,  to  guaranty  to  his  principal  the  pay- 
ment of  the  debt  due  by  the  buyer,  he  is  said  to 
receive  a del  credere  commission. 

Subject  only  to  these  special  rights  of  the  factor 
or  agent,  the  principal  may  assert  his  own  general 
rights  over  every  contract  of  purchase  and  sale 
made  on  his  behalf  in  the  course  of  the  agency. 
The  principal  may  discharge  the  lien  of  the  factor, 
and  then  recover  the  whole  of  the  price  of  the 
purchaser,  or  he  may  recover  the  balance  of  such 
price  after  deducting  the  amount  of  the  agent’s 
lien  thereon.  He  is  the  legal  owner  of  the  pro- 
ceeds of  his  goods  in  whose  hands  soever  they 
may  be,  except  to  the  extent  of  the  lien.  The 
purchaser,  however,  will  be  protected  in  making 
payments,  either  to  the  principal,  or  to  his  agent, 
provided  no  notice  has  been  given  him,  restraining 
this  general  right.* 

The  above  is  subject  to  several  cjualifications.  1. 
The  principal  cannot  sue,  or  be  sued,  on  any  con- 
* Story  on  Agency,  424. 


FACTORS  OR  CONSIGNEES. 


79 


tract  made  by  and  in  the.  name  of  his  agent,  where 
the  same  is  by  an  instrument  under  seal.  2.  A 
foreign  factor,  buying  or  selling  goods,  is  treated, 
between  himself  and  the  other  party,  as  the  sole 
contracting  party;  and  the  real  principal  cannot 
sue  or  be  sued  on  the  contract.*  This  latter  princi- 
ple is  founded  upon  a well  established  usage  of 
trade  and  is  strictly  adhered  to  for  the  convenience 
and  safety  of  foreign  commerce.  3.  Where  the 
consignee  has  a demand  against  his  principal  equal 
to,  or  exceeding,  the  amount  of  the  goods  bought 
or  sold,  the  principal  has  no  right  of  action  against 
the  purchaser,  unless  with  the  consent  of  the  con- 
signee.! 

Consignee's  right  to  commissions.  The  general 
rule  of  law  as  to  commissions  is,  that  the  whole 
service  or  duty  must  be  performed  before  the  right 
to  any  commission  attaches,  either  ordinary  or  ex- 
traordinary ; for  an  agent  must  complete  the  thing 
required  of  him  before  he  is  entitled  to  charge  for 
it.J 

But  the  right  of  the  consignee  to  receive  com- 
missions at  all  may  be  defeated  by  some  act  of  his 
own,  or  by  the  character  of  the  transaction  itself. 
Thus  the  consignee  cannot  recover  commissions 
on  an  illegal  transaction,  whether  the  same  be  posi- 
tively prohibited  by  law,  or  by  good  morals,  or  pub- 
lic policy.  He  must  faithfully  perform  all  the  du- 
ties of  his  agency  in  regard  to  his  principal,  for  it 

* Story  on  Agency,  434,  435,  456.  f Ibid.  435.  | Ibid.  338. 


80 


FACTORS  OR  CONSIGNEES. 


is  a condition  precedent  to  the  title  to  the  commis- 
sions, that  the  contemplated  services  should  he 
fully  and  faithfully  performed.  Thus  for  example, 
it  is  ordinarily  the  duty  of  agents  to  keep  regular 
accounts  and  vouchers  of  the  business  in  the  course 
of  their  agency.  If  this  is  omitted,  it  will  be  con- 
strued unfavorably  to  the  rights  of  the  agent.  So 
if  an  agent  grossly  misconduct  himself  in  other 
respects,  in  the  course  of  his  agency  ; as  if  he 
should  violate  his  instructions;  or  wilfully  con- 
found his  own  property  with  that  of  his  principal : 
in  these  and  like  cases  he  might  forfeit  his  whole 
title  to  compensation,  if  the  circumstances  were 
aggravated  ; or  at  all  events,  he  would  be  made  to 
bear  all  the  losses  sustained  by  such  misconduct.* 

A commission  merchant,  or  consignee,  may  buy 
and  sell  the  goods  of  his  principal  in  his  own  name , 
as  well  as  in  the  name  of  his  principal.  He  has 
entrusted  to  him  the  possession,  management,  con- 
trol, and  disposal  of  the  goods  to  be  bought  or 
sold,  and  has  a special  property  in  them,  and  a lien 
on  them.f 

Where  the  agency  is  created  by  a written  instru- 
ment, the  consignee  must  be  governed  by  it,  for  if 
with  the  hope  and  prospect  of  advantage  to  his 
principal,  the  consignee  deviates  from  his  instruc- 
tions, or  from  his  contract,'  and  a damage  ensues  to 
his  principal,  the  consignee  is  liable  for  the  loss  ; 


* Story  on  Agency,  p.  340,  341. 


f Ibid.  34,  98. 


FACTORS  OR  CONSIGNEES. 


81 


and  if,  on  the  other  hand,  such  deviation  should  re- 
sult in  an  advantage  to  his  principal,  the  agent 
cannot  participate  in  that  advantage.  He  there- 
fore, has  nothing  to  gain,  and  runs  all  the  chances 
of  loss,  if  any  should  ensue,  by  such  deviation. 

Unless  there  be  some  special  instruction  to  the 
contrary,  the  consignee  may,  in  all  cases,  sell  upon 
credit.  With  an  auctioneer  it  is  said  to  be  other- 
wise.* 

Factors  or  consignees  have  no  incidental  authori- 
ty to  barter  the  goods  of  their  principals.  Nor  can 
they  pledge  such  goods  for  debts  due  by  themselves , 
or  for  advances  made  to  them  on  their  oicn  account ; 
but  they  may  pledge  them  for  advances  lawfully 
made  on  account  of  their  principal,  or  for  advan- 
ces made  to  themselves  to  the  extent  of  their  lien 
on  the  goods. f 

So  factors  may  pledge  the  goods  of  their  princi- 
pal for  the  payment  of  the  duties  and  other  charg- 
es due  thereon  ; and,  indeed,  for  any  other  charges 
and  purposes,  which  are  allowed  or  justified  by 
the  usage  of  trade. J 

The  consignee  has  a lien  upon  the  goods  con- 
signed to  him  to  the  extent  of  his  claim  for  com- 
missions advances  and  disbursements. >§>  This  lien 
is  not  only  on  the  goods,  but  upon  the  price  in  the 
hands  of  the  purchaser. ||  To  this  extent,  the  con- 

* Story  on  Agency,  p.  198.  f Ibid.  101,  219,  220. 

t Ibid.  100,  101.  $ Ibid.  98.  ||  Ibid.  386. 


82 


FACTORS  OR  CONSIGNEES. 


signee  may  insist  upon  payment  from  the  purchaser 
to  himself,  in  opposition  to  the  claims  of  the  prin- 
cipal.* Where,  however,  the  factor  would  pre- 
serve his  claim  for  commissions,  &c.,  upon  the  pur- 
chase money  in  the  hands  of  the  purchaser,  he 
should  give  him  notice  of  such  claim  before  pay- 
ment has  been  made  to  the  principal.! 

The  consignee  has  a lien  on  the  goods  consign- 
ed to  him,  and  upon  the  proceeds  of  the  same  in 
the  hands  of  the  purchaser,  not  only  to  the  extent  of 
his  commissions,  advances,  and  disbursements  upon 
those  particular  goods  ; but  his  lien  upon  them 
extends  to  the  general  balance  of  accounts  between 
him  and  his  principal.  It  extends  also  to  all  sums 
which  the  consignee  is  liable  to  pay  for  his  princi- 
pal, as  surety,  or  otherwise,  where  the  liability  was 
incurred  in  the  course  of  the  business  of  the  agency. 

It  is  said  in  Story  on  Agency,  (vol.  1,  chap.  13, 
p.  350,)  that  “ where  a factor  receives  a del  credere 
commission  upon  the  sale  of  goods,  and  he  has 
made  advances  thereon,  he  must  be  deemed  by 
that  very  guaranty  to  wave  any  personal  recourse 
to  his  principal  for  such  advances,  and  to  rely  solely 
on  the  fund  for  reimbursement.”  This  principle 
of  law,  thus  laid  down,  does  not  seem  to  be  found- 
ed upon  any  positive  dec^ion  to  that  effect,  and  its 
soundness  may  well  be  questioned. 


Story  on  Agency,  421. 


f Ibid.  422. 


SHIP  MASTERS. 


83 


CHAPTER  XI. 

SHIP  MASTERS. 

Of  ship  masters — The  appointment  of  the  master — His  authority 
over  the  seamen — His  authority  respecting  the  employment  of 
the  ship — His  authority  to  sell  the  ship — His  authority  to  repair 
the  ship,  &c. — His  authority  to  hypothecate  the  ship — His  au- 
thority to  hypothecate  the  cargo — His  relation  to  the  cargo — 
The  charter  party — The  duty  of  the  freighter — The  bill  of  lading 
—The  carriage  of  the  goods — The  delivery  of  the  goods — His  lia- 
bility for  bad  stowage — His  liability  for  embezzlement — The 
payment  of  freight — His  duty  to  employ  a pilot — Deviation  by 
the  master — Barratry  of  the  master. 

The  office  of  the  ship  master  is  one  of  great 
power,  dignity,  and  responsibility.  An  old  writer 
on  maritime  law  says  the  title  implies  “ honor,  ex- 
perience, and  morals.”  By  some  foreign  ordinances 
the  master,  before  entering  upon  his  duties,  has 
been  required  to  be  examined,  and  certified  to  be 
fit,  by  his  experience,  capacity,  and  character,  for 
the  station.  Without  inquiring  whether  the  latter 
precaution  was  wise  and  politic,  it  is  certain  that 
the  master’s  station  is  one  of  commanding  interest 
to  his  employers,  and  to  those  placed  under  his 
command.  Vast  and  momentous  interests  are  en- 
trusted to  his  care,  and  to  him  is  committed  a wide 
and  extended  discretion.  He  is  entrusted  by  his 
employers  with  their  property,  and  often  made  their 
agent  for  its  care  and  disposal,  in  distant  parts, 
away  from  those  checks  and  safeguards,  which  are 
usually  thrown  around  agents  when  acting  for  their 


84 


SHIP  MASTERS. 


principals.  His  faithfulness  needs  then  to  be  un- 
doubted. Unforeseen  perils  and  vicissitudes  lie 
naturally  in  the  path  of  the  ship  master,  and,  there- 
fore, to  him  is  committed  great  discretionary  powers. 
Cases  are  always  arising  in  which  he  must  act 
promptly  for  the  good  of  all  concerned,  and  that, 
too,  without  having  the  aid  of  previous  precedents 
to  guide  his  decision.  He  requires,  then,  a sound 
and  matured  judgment.  He  needs  to  be  able,  in 
any  emergency,  to  look  calmly  at  the  facts,  apply 
to  them  maritime  principles,  and  from  them  to 
draw  his  conclusions  as  to  what  should  be  done  ; 
and  not  to  act  from  mere  conjecture  and  impulse. 
Being  entrusted  with  the  safe  conduct  of  the  ship 
through  the  many  perils  of  tne  deep,  great  watch- 
fulness, prudence,  and  caution  is  required  at  his 
hands.  He  needs,  therefore,  to  be  a man  of  great 
experience  and  practical  skill,  and  to  possess  a 
thorough  knowledge  of  the  art  of  navigation.  He 
should  possess  great  firmness  of  character,  and 
fearlessness  under  pressing  dangers.  He  should 
be  able  to  dissipate  fear,  and  inspire  confidence  in 
the  breasts  of  those  around  him,  and  be  possessed 
of  the  courage  and  presence  of  mind  necessary  to 
meet  and  surmount  extraordinary  perils. 

His  authority  over  those  on  board  is  necessarily 
summary,  and  often  absolute.  The  character  of 
the  service  requires  that  the  propriety  of  his  com- 
mands should  not  be  questioned,  but  that  instant 
and  unhesitating  obedience  should  be  promptly 


SHIP  MASTERS. 


85 


yielded.  The  preservation  of  the  ship,  and  the 
property  and  lives  on  board,  demands  of  the  master, 
in  times  of  great  danger,  instantaneous  decision 
and  desperate  commands.  He  needs  the  talent 
which  shall  fit  him  to  command  in  the  midst  of 
danger,  and  courage  and  coolness  when  involved 
in  fearful  perils.  These  powers,  thrown  upon  him 
by  necessity,  require  that  he  should  be  a man  of 
great  magnanimity.  Few  men  can  stand  the  in- 
toxication of  power; — especially  power  like  that 
exercised  by  the  shipmaster.  He  wants  to  be  a 
strong  minded  man.  of  good  judgment,  with  a high 
sense  of  the  dignity  and  accountability  of  his  sta- 
tion, and  a just  regard  for  the  rights,  ease,  and 
happiness  of  his  crew.  In  a word,  he  needs  the 
disposition  to  use  his  power,  as  well  for  the  happi- 
ness and  comfort  of  his  crew,  as  the  preservation 
of  the  property  under  his  care.  He  should  never 
forget  the  character  and  hardships  of  the  men  with 
whom  he  has  to  deal.  That  their  waywardness 
and  foibles  spring  legitimately  from  the  nature  of 
their  business.  That  however  very  many  of  them 
may  appear  in  principle  and  action,  yet  they  are 
men,  open  hearted,  generous,  and  free  to  a fault 
That,  like  himself,  they  possess  those  fine  feelings 
of  our  nature,  that  smart  under  harshness  and  op- 
presion  ; that  kindle  with  enmity  over  wrong  ; either 
real  or  imaginery,  and  burn  with  shame  when  dis- 
graced before  their  fellows  by  uncalled-for  correc- 
tion. He  should  never  permit  himself  to  believe 
8 


86 


SHIP  MASFERS. 


that  mariners  are  impervious  to  kindness,  or  inca- 
pable of  appreciating  favors  and  attention.  The 
master  is,  by  station,  as  well  as  by  education  and 
intellect,  their  natural  and  proper  guardian,  and 
should  watch  over  their  health  and  comfort  with 
parental  fidelity. 

The  master  is  charged  frequently  with  the  sale 
of  the  cargo  and  the  reinvestment  of  the  proceeds, 
he  should  be  fitted  to  snperadd  the  character  of 
merchant  to  that  of  commander  ; and  he  ought  to 
to  have  a general  knowledge  of  the  marine  law 
and  of  the  rights  of  belligerants,  and  of  the  duties 
of  neutrals,  so  as  not  to  expose  to  unnecessary 
hazard  the  persons  and  property  under  his  protec- 
tion. 


OF  THE  APPOINTMENT  OF  THE  MASTER. 

If  the  ship  belong  to  several  owners,  the  major- 
ity are  entitled  to  appoint  a master,  and  there  seems 
to  be  no  other  redress  to  the  minority  than  either 
to  sell  their  shares,  or  to  resort  to  such  remedy  as 
the  law  gives  them  in  case  of  a voyage  which 
some  of  them  disapprove.* 

The  appointment  of  master  requires  no  written 
warrant  of  authority,  or  peculiar  solemnity.  It  is 
a contract  with  the  owners,  or  with  the  ship’s  hus- 
band for  them,  and  may  be  entered  into  by  verbal 
agreement.  The  mere  employment  of  master,  with 


* Vol.  1,  Bell’s  Com.  p.  412. 


SHIP  MASTERS. 


87 


possession,  is  sufficient  to  impose  on  him  all  the 
duties,  and  to  vest  him  with  all  the  legitimate  and 
customary  powers  of  master.* 

The  master  may  delegate  his  power  during  the 
voyage  by  naming  another  master;  and  in  ques- 
tions with  third  parties  the  master,  so  named,  will, 
even  where  the  owners  have  prohibited  the  master 
from  delegating,  be  vested  by  possession  of  the 
ship,  and  exercise  of  the  office,  with  all  the  powers 
of  master. f 

In  case  of  the  sudden  death  of  the  master,  or  his 
removal  by  other  casualty,  the  command  of  the 
ship  devolves  upon  the  first  mate,  as  an  incident  to 
his  station  ; but  that  officer  cannot  claim  the  com- 
mand as  a right,  if  the  master,  or  other  authorized 
agent  of  the  owners,  shall  choose  to  appoint  anoth- 
er person. 

In  case  of  the  death,  or  detention  of  the  master 
in  a foreign  port,  where  the  owner  has  no  author- 
ized agent,  it  is  customary  for  the  consul,  or  con- 
sular agent  of  the  government  of  the  country  to 
which  the  ship  belongs,  to  appoint  a successor. 

The  master  is  the  confidential  agent  of  the  own- 
ers, and  has  an  implied  authority  to  bind  them, 
without  their  knowledge,  by  contracts  relative  to 
the  usual  employment  of  the  ship. J 

The  master  is  appointed  by  the  owner,  and  the 
appointment  holds  him  forth  to  the  public  as  a per- 

* Vol.  1,  Bell’s  Com.  p.  412. 

J 3 vol.  Kent’s  Com.  161. 


f Ibid. 


88 


SHIP  MASTERS. 


son  worthy  of  trust  and  confidence.  The  master 
is  always  personally  bound  by  his  contracts,  and 
the  person  who  deals  with  the  captain  in  a matter 
relative  to  the  usual  employment  of  the  ship,  or  for 
repairs,  or  supplies  furnished  her,  has  a double 
remedy. 

-'The  master  may,  however,  exempt  himself  from 
liability,  by  expressly  confining  the  credit  to  the 
owner,  and  stipulating  against  his  personal  liabil- 
ity.* 

The  owner  can  dismiss  the  master,  at  any  time 
in  his  discretion,  without  being  liable  in  damages 
for  the  act.  In  the  Scotch  admiralty,  it  has  been 
decided  that  the  master  may  be  dismissed  by  a ma- 
jority of  the  owners,  although  he  be  a joint  owner 
with  them  in  the  vessel. f 

According  to  our  admiralty  decisions,  if  the  mas- 
ter is  a part  owner,  and  the  other  part  owners  de- 
sire his  removal,  it  is  necessary  that  some  special 
reason  should  be  assigned  for  dispossessing  him  of 
the  command. J 

The  master  is  bound  to  conduct  himself  with 
good  faith,  diligence,  and  competent  skill,  and  he 
is  responsible  to  the  owners,  as  their  agent,  for  his 
conduct. 

Ilis  misconduct  will  subject  him  to  the  forfeiture 
of  his  wages,  if  it  be  gross  in  its  circumstances, 
and  attended  with  serious  damage  to  the  owner. 


* 9 East.  R.  432— 1 Term.  R.  108.  f 4 Eob.  R.  2S7.  $ Ibid. 


AUTHORITY  OVER  SEAMEN. 


89 


For  faults  of  a less  aggravated  nature,  the  dam- 
age consequent  thereupon,  will  be  a charge  upon 
his  wages. 

Chief  Justice  McKean  said  in  a case  reported  in 
1 Dali.  184,  “ that  it  is  a wrong  position,  that  a 
master  of  a ship  is  not  answerable  for  any  error  of 
judgment ; but  only  for  fault  of  the  heart,  in  civil 
matters.  Reasonable  care,  attention,  prudence  and 
fidelity,  are  expected  of  him  ; and  if  any  misfor- 
tune or  mischief  ensue  from  the  want  of  them, 
either  in  himself  or  his  mariners,  he  is  responsible 
therefor  in  a civil  action.” 

If  the  owners  are  obliged  to  pay  damages  on 
such  account,  they  may  recover  the  same  from  the 
master.* 

OF  THE  MASTER’S  AUTHORITY  OVER  THE  SEAMEN. 

The  necessities  of  the  sea  service  have  given 
to  the  ship  master,  when  at  sea,  great  authority 
over  the  officers  and  crew  under  his  command.  A 
prompt  and  cheerful  obedience  of  orders,  on  the 
part  of  the  seamen,  is  of  the  utmost  importance. 
If  the  crew,  when  on  the  ocean,  should  become 
obstinate  or  indolent,  and  refuse  to  yield  that 
prompt  and  uncomplaining  obedience  which  is  so 
necessary  for  the  preservation  of  the  ship  and 
cargo,  without  authority  in  the  master  to  enforce 
obedience  by  correction,  the  whole  adventure  may 
* 4 Rob.  R.  287. 


8* 


90 


AUTHORITY  OVER  SEAMEN. 


be  abandoned  to  the  mercy  of  the  wind  and 
waves.  It  has,  therefore,  ever  been  the  disposition 
of  maritime  courts,  to  uphold,  with  a firm  hand,  a 
reasonable  exercise  of  the  authority  committed  to 
the  master  and  other  officers  of  the  ship.  A regu- 
lar and  healthy  subordination  on  board,  is  vital  to 
the  prosperity  and  continuance  of  maritime  adven- 
tures. In  the  progress  of  commercial  transactions, 
tempests  are  to  be  met  and  surmounted,  angry 
winds  and  waves  are  to  be  encountered,  and  over- 
come by  watchfulness,  address,  and  skill,  and  rocks 
and  shoals  avoided  by  prudence  and  care.  The 
master  needs,  then,  that  his  whole  ship’s  crew 
should  be  of  one  mind,  attentive,  watchful,  and  obe- 
dient. Savage  countries  are,  often,  to  be  visited, 
and  trade  carried  on  with  persons  crafty,  ferocious, 
and  vindictive,  and  where  the  whole  profits  of  the 
voyage  depend  upon  vigilance,  industry,  and  ex- 
clusive devotion  to  the  interests  of  the  ship. 

These  considerations,  combined  with  the  known 
character  of  sea-faring  men,  have  made  it  necessa- 
ry that  great  power  and  authority  should  be  placed 
in  the  hands  of  the  master.  The  character  of  sail- 
ors is  made  up  of  contrarieties, — of  frailties,  and  of 
merits.  We  find  ofteu  times  blending  in  the  same 
character,  the  most  captivating  gallantry,  with  the 
most  stuborn  indolence.  Great  care  and  watchful- 
ness, sometimes  giving  way  to  most  censurable 
thoughtlessness  and  indifference. 


AUTHORITY  OVER  SEAMEN. 


91 


The  authority  of  the  master,  then,  needs  to  be 
commeasurate  with  the  importance  of  the  trust,  the 
dangers  of  the  voyage,  and  the  difficulties  of  the 
service.  But  commeasurate  with  his  power,  is  his 
legal  accountability.  His  power  is  given  to  ensure 
order,  not  to  gratify  revenge  ; to  preserve  both  the 
lives  and  property  embarked,  not  to  be  used  harshly, 
unreasonably,  or  with  unnecessary  severity. 

The  master  can  punish  only  to  promote  good 
discipline  and  compel  obedience  to  lawful  orders 
on  board  of  the  ship.  He  is  not  clothed  with  judicial 
authority  to  sentence  seamen  to  punishment  for 
their  offences.  Therefore  the  master  cannot  con- 
fine his  seamen  on  shore,  in  a foreign  port,  unless 
with  an  intention  to  take  them  on  board  again  for 
the  voyage. 

The  master,  when  in  a foreign  port,  may,  in  cases 
of  flagrant  offences. on  the  part  of  the  seamen,  con- 
fine them  in  gaol  on  shore,  but  will  not  be  justified 
when  the  offence  is  of  a less  serious  character. 

No  authority  to  imprison  seamen,  for  offences,  is 
given  the  master  in  a domestic  port. 

The  master,  when  on  board,  has  the  sole  authori- 
ty to  authorise  punishment  to  be  inflicted  upon  the 
crew,  and  if  he  is  present  when  any  punishment  is 
inflicted  by  a subordinate  officer,  and  can  prevent 
it,  and  does  not,  he  is  personally  responsible  for  the 
act. 

When  the  ship  is  in  a foreign  port,  and  an  occa- 
sion arises  calling  for  the  punishment  of  any  sea- 


92  master’s  authority. 

man  on  board,  it  is  the  master’s  duty  to  consult  the 
consul,  or  consular  agent  of  his  government,  if 
such  officer  resides  at  that  port,  and  to  be  govern- 
ed by  his  advice  in  such  cases. 

OF  THE  master’s  AUTHORITY  RESPECTING  THE  EM- 
PLOYMENT OF  THE  SHIP. 

The  master  is  the  confidential  agent  of  the 
owners,  and  has  an  implied  authority  to  bind  them, 
without  their  kowledge,  by  contracts  relative  to 
the  usual  employment  of  the  ship.  His  implied 
authority  relates  to  the  usual  employment  of  the 
particular  ship  of  which  he  is  master.  If  the  ship 
be  a hading  ship,  the  master  may  be  supposed,  if 
nothing  appears  to  the  contrary,  to  have  a general 
authority  to  charter  the  ship,  or  stipulate  for  the 
carriage  of  goods  on  freight,  in  a foreign  or  distant 
port  where  the  owners  have  no  agent.* 

The  owners  are,  in  general,  answerable  for  all 
lawful  contracts  connected  with  the  employment  of 
the  ship  for  which  the  character  and  situation  of 
the  masfer  affords  the  presumption  of  authority. 
If  lie  exceeds  the  authority  given  him,  yet  if  there 
be  a fair  presumption  that  he  has  such  authority, 
and  the  party  contracting  has  no  knowledge  of  its 
limitation,  the  owners  are  bound  by  his  contract. 
Thus  it  is  expressly  laid  down,  that  if  the  master 
appoint  another  man  to  take  his  place,  contrary  to 
# Abbott,  p.  92. 


master’s  authority. 


93 


the  positive  orders  of  the  owners,  they  are  yet  re- 
sponsible for  the  conduct  of  the  master  so  appoint- 
ed against  their  will.* 

It  has  been  before  said,  that  the  incidental  pow- 
ers of  the  master  are,  however,  restricted  to  those 
which  belong  to  the  usual  employment,  or  business 
of  the  ship.  Thus,  if  the  ordinary  employment  of 
the  ship  has  been  the  carrying  of  cargoes  on  the 
sole  account  of  the  owners,  the  master  has  no  im- 
plied authority  to  let  the  ship  to  freight,  even  in  a 
foreign  port.  So  if  the  ordinary  employment  has 
been  to  take  goods  on  board  on  freight,  as  a gene- 
ral ship,  and  common  carrier,  the  master  will  not 
be  presumed  to  possess  authority  to  let  the  ship  on 
a charter  party,  fora  special,  and  different  business. 
So,  if  the  ship  has  been  accustomed  to  carry  pas- 
sengers only,  the  master  will  not  be  presumed  to 
possess  authority  to  take  goods  on  board  on  freight. 
So,  if  the  ship  has  been  accustomed  to  the  coasting 
trade,  or  the  fisheries,  or  to  river  navigation  only, 
the  master  will  not  be  presumed  to  possess  authori- 
ty to  divert  the  ship  into  another  trade,  or  business, 
or  voyage,  on  the  high  seas.f 

If  the  party  contracting  with  the  master  knows 
what  his  instructions  are,  he  is  bound  by  them,  and 
the  master  should,  for  his  own  security,  as  a gene- 
ral rule,  acquaint  those  with  whom  he  contracts, 
with  the  nature  and  extent  of  his  authority. 

In  the  case  of  a general  trading  ship,  both  at 
# Abbott,  p.  92.  f Story  on  Agency,  Sec.  121. 


94 


MASTER  S AUTHORITY. 


home,  and  in  a foreign  port,  it  rarely  happens  that 
the  owner  interferes  with  the  receipt  of  the  cargo  : 
and  Mr.  Abbott  says,  that,  “without  doubt,  they 
are  bound  by  every  contract  made  by  the  master, 
relative  to  the  usual  employment  of  the  ship.”* 
Where  the  master  makes  the  charter  party  in  his 
own  name,  the  owners  are  not  personally  bound  ; 
but  the  ship  and  freight,  and  therefore,  indirectly, 
the  owners,  to  the  extent  of  the  value  of  the  ship 
and  freight,  are  bound  to  the  performance.! 

If  the  owners  themselves  have  made  a special 
contract  for  the  employment  of  their  ship,  the  mas- 
ter cannot,  by  the  general  and  implied  character  of 
his  office  only,  anual'  such  a contract,  and  substi- 
tute another  for  it  with  the  other  contracting  party. 

The  master  of  a ship,  in  his  general  character  of 
agent  for  the  owners,  has  a right,  in  a foreign  port, 
to  contract  for  the  charter  of  the  ship,  and  the 
owners  will  be  bound  by  such  contract  of  the 
master-! 

The  master  cannot,  merely  in  his  character  of 
master,  bind  the  owners  by  a contract  under  seal , 
so  as  to  Subject  them  to  an  action  under  the  cove- 
nant. To  bind  them  by  an  instrument  under  seal, 
he  must  hold  their  power  of  attorney,  giving  him 
authority  so  to  bind  them.§ 

The  master,  unless  he  expressly  provides  against 
it,  will  himself  be  bound  upon  the  charter  party 
made  by  him,  as  well  as  the  owner. 

* Abbott,  p.  93.  f Ibid.  93.  $ 6.  Greenleaf,  160.  § Ibid. 


MASTER  S AUTHORITY. 


9 5 


If  the  master  has  not  exceeded  his  authority  in 
the  charter  of  the  ship,  and  can  show  satisfacto- 
rily that  the  credit  was  given  exclusively  to  the 
owner,  he  is  discharged  from  his  liability.* 

A purchaser  of  the  vessel  during  the  voyage  is 
bound  by  the  contracts  of  the  master,  made  during 
such  voyage,  and  after  such  purchase,  and  made 
within  the  scope  of  his  authority. f 

OF  THE  MASTER’S  AUTHORITY  TO  SELL  THE  SHIP. 

It  was  formerly  held  that  the  master  had  no  au- 
thority, under  any  circumstances,  to  make  sale  of 
the  ship.  At  least,  that  was  supposed  to  be  the 
opinion  of  the  lords  Hale  and  Holt.  But  as  the 
wants  of  navigation  developed  themselves,  a dispo- 
sition was  manifested  to  relax  this  rule  in  some 
measure,  but  with  great  caution.  It  was  thought 
to  be  a dangerous  power  to  entrust  in  the  hands  of 
the  master.  That  it  was  open  to  abuse,  to  collu- 
sion and  fraud.  It  was  even  held  that  the  master, 
acting  under  an  order  of  the  Vice  Admiralty  Court, 
could  not  make  a sale  of  the  ship,  so  as  to  bind  the 
owners.  But  in  later  decisions  the  master’s  author- 
ity has  been  extended,  but  with  great  jealousy,  and 
confining  it  to  cases  of  urgent  and  inevitable  ne- 
cessity. So,  too,  it  was  first  held  that  such  sale 
could  not  be  made,  by  the  master,  except  on  a for - 


Story  on  Agency,  p.  29b. 


f 6.  Mass.  It.  422. 


96 


MASTER  S AUTHORITY. 


eign  shore ; but  late  American  decisions  have  so  far 
relaxed  the  rule  as  to  permit  him  to  sell,  as  well  on 
a home , as  on  a foreign  shore,  if  the  same  urgent 
necessity  exists  for  immediate  action.  The  pur- 
pose of  this  chapter  will  be  to  assist  the  master  in 
deciding  when  such  urgent , inevitable  necessity 
exists. 

Such  a necessity  as  will  justify  the  master  in 
selling  the  ship,  can  seldom  take  place  on  a home 
shore , and  in  the  vicinity  of  the  owner.  This  is 
so,  because  the  only  principle  on  which  a sale  of 
the  ship,  by  the  master,  can  be  justified  at  all,  is, 
that  the  property  is  so  situated  that  it  must  be  dis- 
posed of  immediately , or  an  onerous  expense  be 
forthwith  incurred  to  protect  the  ship  from  serious 
injury,  or  total  loss.  If  the  master  can  communi- 
cate with  the  owners  easily , and  expeditiously,  and 
no  serious  injury  is  likely  to  result  from  the  neces- 
sary delay,  he  must  not  sell,  but  wait  the  orders  of 
the  owners.  An  urgent,  inevitable  necessity,  is  a 
necessity  that  does  not  admit  of  delay;  that  re- 
quires prompt  and  instantaneous  action  ; it  is  a 
case  where  to  wait  for  the  orders  of  the  owners 
would  be  at  the  imminent  risk  of  the  property,  and 
without  prospect  of  benefit  to  the  owners.* 

It  can  seldom  happen  to  be  the  duty  of  the  mas- 
ter to  sell  the  ship, — except  in  the  case  of  a ship- 
wreck of  the  vessel,  where  she  is  got  into  port  in  a 


# 5 Mason,  481.  2 Pick.  254. 


MASTER  S AUTHORITY. 


97 


disabled  state  ; and  in  case  of  her  being  stranded, 
partially  destroyed  by  fire,  or  rendered  unseawor- 
thy by  age. 

One  thing  the  master  must  bear  steadily  in  view, 
and  that  is,  that  there  must  be  a real  and  not  a 
fancied  necessity  for  the  selling  of  the  ship.  The 
mere  fact  that  the  master  acts  honestly  and  in  good 
faith,  sincerely  believing  that  the  good  of  all  con- 
cerned requires  the  sale  to  be  made,  does  not  jus- 
tify the  sale,  unless  the  circumstances  do  in  fact 
justify  it.  If  the  validity  of  the  sale  is  called  in 
question  in  a court  of  law,  the  facts  with  regard  to 
the  situation  of  the  ship,  brought  to  the  notice  of 
the  jury,  must  be  such  as  to  satisfy  them  that  there 
was  a moral  necessity  for  the  sale,  so  as  to  make 
an  argent  duty  upon  the  master  to  sell  for  the  pre- 
servation of  the  interest  of  all  concerned.* 

If  the  circumstances  be  such  that  an  owner  of 
reasonable  prudence  and  discretion,  acting  upon  the 
pressure  of  the  occasion,  would  have  directed  the 
sale,  from  a firm  opinion  that  the  vessel  could  not 
be  delivered  at  all  from  the  peril,  or  not  without 
the  hazard  of  an  expense,  utterly  disproportionate 
to  her  real  value,  as  she  lies,  then  a sale  by  the 
master  is  justifiable. f 

The  mere  fact  that  the  vessel  is  insured,  and 
that  the  injury  to  the  vessel  is  such  as  to  entitle 
the  owner  to  abandon  her  to  the  underwriters,  does 
not,  of  itself,  authorise  the  master  to  sell  her.  The 
* 5 Mason,  476.  f 2 Sumner,  206. 

9 


98 


master’s  authority. 


insured  may  elect  to  repair  her,  and  they  certainly 
should  have  the  opportunity  to  make  the  most  of 
what,  at  best,  must  subject  them  to  more  or  less 
loss. 

When  the  ship  has  become  a wreck,  and  the 
master  believes,  from  the  nature  of  the  damage, 
that  the  vessel  is  unworthy  of  repair ; or,  if  stranded, 
cannot  be  removed  without  great  expense,  the 
usual,  and  perhaps  the  best  course,  is  for  the  mas- 
ter to  call  to  his  aid  the  counsel  of  others.  This, 
however,  is  upon  the  supposition  that  he  cannot 
communicate,  in  time,  with  his  owners.  If  an 
American  consul  or  commercial  agent  resides  at  the 
port,  the  master  should  apply  to  him  to  appoint 
three  or  more  competent  persons,  skilled  in  such 
matters,  to  make  a survey,  and  report  the  state  of 
the  vessel,  the  amount  of  damage  received,  and  the 
probable  expense  of  repairing  the  same.  If  no  con- 
sul or  consular  agent  resides  at  the  port  near  which 
the  disaster  happened,  then  the  master  may  procure 
the  appointment  to  be  made  by  some  officer  of  the 
government  of  the  country  where  the  disaster  hap- 
pened. Their  survey,  when  made,  should  be 
6worn  to  before  some  justice  of  the  peace. 

This  survey,  when  made  by  competent  persons, 
in  good  faith,  without  any  appearance  of  collusion 
or  fraud,  is  good  evidence  to  support  the  master, 
but  not  conclusive.  If  the  owners,  or  insurers,  can 
prove  by  other  and  better  testimony,  that  the  sur- 
veyors were  inaccurate  in  their  estimates,  or  exag- 


MASTER  S AUTHORITY. 


99 


gerated  the  damage,  and  that  no  snch  necessity-  did 
in  fact  exist,  the  sale,  though  made  in  good  faith 
by  the  master,  on  the  recommendation  of  such  sur- 
veyors, will  be  void.* 

With  respect  to  such  survey's,  chief  justice  Par- 
ker remarked,  “ that  where  the  vessel  has  been  se- 
riously injured,  so  as  to  make  a survey  necessary, 
and  the  master  acting  in  good  faith  calls  a survey ' 
and  persons  of  competent  skill  and  perfectly  disin- 
terested are  appointed,  and  they,  after  a full  and 
careful  examination,  find  her  essentially  injured, 
and  come  deliberately  to  the  conclusion  that  the 
costs  of  repair  will  exceed  the  worth  of  the  vessel 
after  being  repaired,  a moral  necessity  is  imposed 
upon  the  master  to  act  according  to  their  ad  vice,  j* 

The  master  cannot  become  a purchaser  himself 
at  such  a sale  : and  if  he  purchases  of  a direct  pur- 
chaser, after  the  sale,  the  court  will  search  the 
transaction  to  the  bottom  to  see  if  good  faith  has 
been  exercised  on  his  part,  before  it  will  give  valid- 
ity to  such  a title. 1; 

The  purchase  of  the  wreck,  by  any  part  of  the 
surveyors,  would  lead  to  violent  suspicions  of  their 
good  faith  and  integrity.  It  would  be  likely  to 
shake  the  confidence  of  the  court  in  their  estimates 
and  representations. 

When  the  ship,  or  any  part  of  her  tackle,  apparel, 
or  furniture,  is  sold  by  order  of  the  master,  for  the 
benefit  of  whom  it  may  concern,  the  sale  must  bo 

* 2 Pick.  254.  f Ibid.  264.  J 5 Mason,  476. 


100 


MASTER’S  ADTHOR1TT. 


by  auction,  and  the  master  should,  by  no  means, 
omit  to  give  suitable  public  notice  of  the  sale. 
When  the  sale  is  determined  upon,  the  master  is 
justified  in  making  it  in  any  way  that  promises  to 
yield  the  most  for  the  property.  It  may  be  by  ex- 
posing the  whole  for  sale  in  one  lot,  or  by  dividing 
it  into  parcels,  whichever  may  seem  likely  to  pro- 
duce the  greatest  amount. 

Where  the  circumstances  justify  a sale  of  the 
ship  by  the  master,  it  matters  not  whether  the  ves- 
sel be  insured  or  not ; for  if  she  be  insured,  then 
he  acts  as  the  agent  of  the  insurers  in  making  the 
sale,  and  must  hold  the  money  received  therefor  for 
their  use.  So,  too,  if  she  has  changed  hands,  or 
been  mortgaged,  since  leaving  port,  the  master  acts 
in  conducting  the  sale  as  the  agent  of  the  owner, 
in  fact , whoever  the  same  may  be.* 

In  many  of  the  ports  of  the  United  States,  the 
insurance  offices  have  agents,  whose  duty  it  is  to 
look  after  wrecked  property  on  which  their  princi- 
pals have  insured.  In  case  of  shipwreck,  it  is  al- 
ways well  for  the  master  to  consult  with  such 
agents,  before  taking  any  steps  towards  selling,  or 
repairing.  But  before  surrendering  the  property  to 
the  disposal,  and  management  of  any  such  agents, 
the  master  should  be  careful  to  ascertain  the  exact 
authority  of  such  agent,  and  see  how  far  he  is  au- 
thorised to  bind  his  principal. 


* 5 Mason,  481. 


101 


Master’s  authority. 

If  the  agent  exceed  his  powers,  his  principal  may 

affirm  or  disaffirm  his  acts  as  subsequent  facts  may 

% 

seem  to  be  for  his  interest.  If  the  acts  of  the 
agent  are  disaffirmed,  and  prove  to  be  mere  assump- 
tion of  authority  on  his  part,  then  he  becomes  the 
agent  of  the  master,  and  the  latter  is  responsible 
for  his  acts.* 

The  master,  except  in  cases  of  great  and  urgent 
necessity,  should  never  commit  the  management 
of  business  with  which  he  is  entrusted  to  the  care 
of  others,  especially  in  case  of  shipwreck,  or  any 
other  disaster,  because  the  master,  in  all  cases,  is 
responsible  for  the  fidelity  of  those  whom  he  sub- 
stitutes for  himself.f 

From  the  foregoing  the  master  will  see  that  his 
authority  to  sell  the  ship  is  derived  entirely  from 
that  necessity  which  supercedes  all  laws.  He  will 
see,  too,  that  no  acts  of  his  own,  nor  recommenda- 
tion of  others,  can  make  the  sale  valid  unless  the 
circumstances  of  the  case  make  it  so.  The  report 
of  the  surveyors,  then,  he  is  to  consider  merely  ad- 
visory, but  still  advice  of  the  highest,  and  best,  and 
perhaps  the  only  kind  that  he  should  look  to,  as  in 
any  degree  calculated  to  justify  his  future  conduct, 
if  regulated  in  accordance  therewith. 

When  the  master  has  once  rightfully  made  sale 
of  the  ship,  no  subsequent  acts  of  his  relating  to  her 
can  prejudice  the  owners,  since  from  that  moment 

* Story  on  Agency,  p.  115. 

9* 


f Ibid.  pp.  14 — 16. 


102 


master’s  authority. 


he  becomes  the  agent  of  the  insurers,  and  holds  the 
funds  derived  from  a sale  of  her,  for  their  use  and 
benefit. 

Shipmasters  will  perceive,  by  a careful  attention 
to  the  preceding  rules,  that  the  authority  which 
they  may  have  under  certain  circumstances  to  sell 
the  ship  is  restricted  within  very  narrow  limits,  and 
for  the  exercise  of  which  they  are  held  strictly  ac- 
countable. They  cannot  delegate  to  others  any 
power  beyond  that  with  which  they  are  legally  in- 
vested, consequently,  no  master  can  escape  from 
the  responsibility  of  a sale,  by  placing  his  business 
in  the  hands  of  another  person,  although  that  per- 
son may  be  a consul,  or  consular  agent  of  his  gov- 
ernment. The  popular  idea,  that  whenever  a ves- 
sel meets  with  difficulty  abroad,  the  master  may 
protect  himself  from  accountability  by  calling  upon 
the  consul  of  his  nation,  and  following  his  advice, 
is  founded  in  error.  Consuls,  and  consular  agents 
are,  generally,  persons  engaged  in  trade,  and,  too 
frequently,  are  governed  by  sinister  motives  in  the 
advice  which  they  give  in  such  cases.  It  is  al- 
ways well  for  a master  to  acquaint  them  with 
his  acts,  and  it  is  their  official  duty  to  give  him 
counsel,  and  assistance,  but  he  should  not  suffer 
himself  to  be  made  the  mere  instrument  of  their 
wishes.  He  should  be  governed  by  his  own  sense 
of  light,  with  a single  eye  to  the  best  interests  of 
all  concerned  ; and  although  it  is  impossible  to  lay 
down  precise  rules  which  will  meet  the  exigencies 


master’s  authority.  103 

of  every  disaster,  it  may  be  said,  generally,  that  the 
best  course,  is  that  which  a prudent  ship  owner,  if 
uninsured,  would  himself  direct,  if  present. 

For  remarks  on  the  duty  of  seamen,  in  case  of 
the  wreck. of  the  vessel,  see  article,  entitled,  “duty 
of  mariners  in  case  of  disaster,”  under  the  head  of 
seamen. 

OF  THE  master’s  AUTHORITY  TO  REPAIR  THE  SHIP 
AND  FURNISH  SUPPLIES. 

The  principle  is  well  settled  that  the  master  may 
procure  necessary  repairs  to  be  put  upon  the  ship, 
when  abroad,  at  the  expense  of  the  owners.  If  the 
owners  have  money  on  board  he  should  resort  to 
that,  before  making  the  repairs  upon  their  credit. 
If  he  has  no  money  of  his  oivn,  or  of  the  owners , 
cn  board,  and  the  vessel  need  repair,  he  may  then 
procure  them  to  be  made,  either  upon  the  credit  of 
the  owners , or  upon  his  own  credit,  or  upon  his  and 
the  owners  joint  credit  ; or,  if  in  neither  of  these 
ways  the  necessary  funds  can  be  supplied,  he  may 
hypothecate  the  ship  and  freight.* 

And  if  the  necessary  funds  cannot  be  supplied  by 
hypothecation  of  the  ship  and  freight,  the  master 
may  then  resort  to  the  cargo,  as  appears  under  the 
proper  head.  See  “ hypothecation  of  the  cargo.” 
The  repairs  and  supplies  which  the  master  is 
authorised  to  procure  in  a foreign  port,  are  not 
* Abbott,  p.  100. 


104  master’s  authority. 

merely  such  as  are  absolutely  necessary,  but  in- 
clude all  such  as  are  reasonably  fit  and  proper  for 
the  ship.* 

But  it  is  a matter  of  serious  doubt  whether  the 
master  has  a right  ro  resort  to  bottomry,  or  the 
sale  of  the  cargo , for  the  purpose  of  procuring  any 
supplies,  excepting  those  of  absolute  necessity. 

Where  the  master  contracts  for  repairs  he  is  al- 
ways personally  bound,  unless  he  takes  care,  by  ex- 
press terms,  to  confine  the  credit  to  his  owners 
only. f 

If  a special  promise  be  made  by  the  master,  the 
owners  are  not  holden  ; so  if  a special  promise  be 
made  by  the  owners,  the  master  is  discharged  from 
any  obligation.  The  obligation  to  pay,  rests  upon 
the  person  to  whom  the  credit  was  given.  When 
the  credit  is  given  to  the  ship  and  freight,  as  in 
case  of  an  hypothecation  of  her  for  repairs,  the 
lender  must  look  to  her,  and  in  case  of  her  loss, 
lose  his  debt. J 

If  the  master  uses  his  own  funds  for  the  repair 
of  the  ship,  or  for  the  purpose  of  furnishing  neces- 
sary supplies,  he  has  a lien  upon  the  ship  and 
freight  for  the  advances  thus  made.$ 

Not  only  the  master,  but  also  the  consignee  has 
authority  to  cause  necessary  repairs  to  be  put  upon 
the  ship  consigned  to  him,  at  the  expense  of  the 
owner.  || 

* Ship  Fortitude,  Boston.  | Abbott,  p.  100.  J 11  Mass.  E.  p.  37 
$ 1 Peter’s  Adm.  E.  223.  ||  11  Mass.  E.  p.  3S. 


MASTER  S AUTHOTITY. 


10S 


From  the  general  liability  of  the  master  on  all 
contracts  made  respecting  the  ship,  and  the  neces- 
sity of  his  obtaining  supplies  for  her  nse,  arise  his 
right  to  detain  the  freight,  until  he  is  fully  paid  his 
expenses  and  disbursements.  To  this  extent  it 
seems  to  be  held  that  the  master  has  a lien  upon 
the  freight,  even  against  the  owner.* 

The  master,  if  he  wishes  to  hold  the  consignee, 
or  owner  of  the  cargo,  for  the  amount  of  his  dis- 
bursements for  account  of  the  ship,  must  give  no- 
tice to  the  owner  or  consignee  to  that  effect,  with 
the  amount  of  his  claim. f 

Where  the  master  has  either  expended  money  on 
account  of  the  ship,  or  incurred  liabilities  on  her 
account,  he  has  a right  to  insist  upon  collecting  the 
freight,  even  in  the  home  port,  and  in  opposition  to 
the  owner.  If  the  owner  of  the  goods,  after  notice, 
pays  over  the  freight  to  the  shipowner,  he  is  liable 
to  the  master  to  the  amount  of  his  claim  for  dis- 
bursements, if  they  do  not  exceed  the  amount  of 
the  freight. | 

Supplies  furnished.  The  same  principles  that 
are  laid  down  as  to  the  right  of  the  master  to  retain 
freight  money,  to  the  amount  of  his  disbursements, 
for  the  repairs  of  the  ship,  hold  good  as  to  supplies 
furnished  for  the  ship.  They  both  stand  on  the 
same  footing. 

There  must  be  a reasonable , though  there  may 
not  be  an  absolute  necessity  for  the  supplies  pro- 
f 7 Cowen,  E.  679.  % Ibid. 


* 4 Mass.  E.  91. 


106 


master’s  authority. 


cured  by  the  master.  Expenses  incurred  in  arm- 
ing the  ship  were  held  not  to  be  a charge  that 
could  be  enforced  against  the  owner,  except  the 
case  was  one  of  urgent  necessity.* 

OF  THE  master’s  AUTHORITY  TO  HYPOTHECATE  THE 
SHIP. 

The  principle  is  well  settled,  that  the  master  has 
a right  to  hypothecate  the  ship  and  freight,  for  the 
purpose  of  raising  money  to  furnish  supplies  for,  or 
to  make  repairs  upon,  her.  But,  before  resorting  to 
a hypothecation  of  the  ship,  the  master  should  en- 
deavor to  raise  the  necessary  funds  upon  the  credit 
of  the  owner,  or  owners.  If  he  has  money  of  theirs 
on  board,  sufficient  for  his  wants,  he  cannot  hy- 
pothecate the  ship,  or  freight.  And,  therefore,  the 
master,  before  taking  up  money  on  bottomry, 
should  assure  himself  that  there  is  no  other  way  in 
which  he  can  raise  the  necessary  funds.  He  ought 
first,  certainly,  to  apply  to  the  consignee  for  funds 
and  direction,  and  this,  too,  even  if  the  consignee 
resides  at  another  port  distant  from  that  occupied 
by  the  vessel.  If  the  distance  be  great,  so  as  to 
make  it  extremely  difficult  to  communicate  with 
him,  the  master  may  proceed  without  his  advice. 

For  further  remarks  on  this  point,  see  “ mari- 
time loans,”  and  hypothecation  of  the  cargo.” 


* Ship  Fortitude,  Boston.  1 Johns.  R.  106. 


master’s  authority.  107* 

OF  THE  master’s  AUTHORITY  TO  HYPOTHECATE  THE 
CARGO. 

The  great  object,  which  the  master  is  bound  to 
keep  steadily  in  view,  with  respect  to  the  cargo,  is 
its  safe  and  speedy  conveyance  to  its  destined  port. 
In  general,  the  master  is  a stranger  to  the  cargo, 
any  further  than  he  is  concerned  in  its  safe  custody 
and  conveyance.  But  in  cases  of  unforeseen,  and 
unprovided  necessity,  the  character  of  agent  and 
supercargo  is  forced  upon  him,  by  the  general  pol- 
icy of  the  law.  If  the  ship  has  put  into  a port  of 
necessity,  in  distress,  and  needs  repairs  to  enable 
her  to  pursue  her  voyage,  the  master  is  bound  to 
take  the  most  prompt  measures  to  hasten  forward 
the  cargo.  But  in  this  he  is  not  entirely  to  lose 
sight  of  the  interests  of  the  ship  owner.  His  first 
duty  is  to  repair  the  ship,  if  practicable.  If  the 
ship  cannot  be  repaired  in  season  to  carry  on  the 
cargo,  or  is  so  disabled  as  not  to  be  worth  re- 
pair, then  his  first  duty  towards  the  cargo  is  to 
tranship  it,  and  send  it  on  by  another  vessel,  if  one 
can  be  found  in  that,  or  a neighboring  port.  If  no 
such  vessel  can  be  procured,  or  not  without  an  ex- 
expense totally  disproportioned  to  the  advantages 
expected  to  be  derived  from  sending  the  goods  for- 
ward, then  he  may  store  them,  or  if  they  be  of  a 
perishable  nature,  he  is  bound  to  sell  them.  If, 
however,  the  vessel  be  capable  of  repair  within  a 


108 


master’s  authority. 


reasonable  time,  he  must  repair,  if  the  necessary 
funds  can  be  procured 

These  funds  he  must  first  endeavor  to  obtain 
upon  the  credit  of  the  owners.  If  they  cannot  be 
raised  upon  their  credit,  then,  as  has  been  seen,  he 
may  hypothecate  the  ship  and  freight.  Or,  if  he 
fail  in  this,  he  may  hypothecate  the  cargo,  for  the 
purpose  of  raising  the  necessary  funds  to  make  the 
repairs ; or,  if  the  funds  cannot  be  obtained  in  this 
way,  he  may  sell  a part  of  the  cargo.  But,  if  the 
master  resorts  to  an  hypothecation  of  the  cargo,  he 
must  hypothecate  the  whole  of  it,  and  not  a part, 
as  it  is  for  the  interest  of  the  whole  that  it  should 
go  forward  ; and  it  must  also  be  made  in  addition 
to  the  hypothecation  of  the  ship  and  freight,  as  the 
latter  is  the  proper  fund,  from  which  the  loan 
should  be  paid. 

It  is,  therefore,  seen  that  the  master  cannot  hy- 
pothecate the  cargo,  for  the  purpose  of  raising 
money  to  repair  the  ship,  until  he  has  first  tried 
every  other  method,  except  a sale  of  it.  When 
other  means  of  raising  the  money  has  failed  him 
he  may  resort  to  that. 

The  master  is  in  no  case  authorised  to  sell  more 
than  a part  of  the  cargo  for  the  purpose  of  repairing 
the  ship,  and  this  he  can  do  only  in  the  last  re- 
sort. 

If  the  master  sells  a portion  of  the  cargo,  the  for- 
eign purchaser  derives  a good  title  to  the  goods; 
and  the  lender  or  respondentia  has  a valid  claim 


master’s  authority. 


109 


upon  the  cargo,  or  .more  properly  speaking  upon 
the  owners  of  the  cargo,  to  the  extent  of  its  value, 
provided  it  arrives  safe.* 

The  principles  which  govern  the  contract  of  re- 
spondentia, are  very  much  the  same  as  those  gov- 
erning the  contract  of  bottomry. 

If  the  goods  of  A.  are  hypothecated  by  the  mas- 
ter of  a ship  belonging  to  B.,  there  is  no  liability 
incurred  by  A.  beyond  the  value  of  the  goods  so 
pledged.  If  the  goods  are  lost,  the  lender  on  bot- 
tomry, if  he  is  not  further  secured  by  an  hypothe- 
cation of  the  ship  and  freight,  suffers  the  loss.  But 
if  the  ship,  goods,  and  freight  of  B.  are  hypotheca- 
ted by  the  master,  and  the  ship  arrives  without  sea 
peril,  the  lender  has  not  only  a lien  upon  the  prop- 
erty hypothecated  for  the  repayment  of  his  loan, 
but  it  also  becomes  a personal  charge  upon  the 
owners. f 

Maritime  interest  ceases  at  the  termination  of  the 
risk.  If  payment  of  the  bond  is  thereafter  delayed, 
the  holder  can  recover  no  more  than  the  legal  rate 
of  interest  for  the  use  of  the  money. 

The  lender  on  respondentia,  like  the  lender  on 
bottomry,  is  entitled  to  his  whole  loan  if  the  goods 
be  lost  by  the  neglect  or  fraud  of  the  owners  or 
master , or  by  the  unseaworthy  state  of  the  ship,  or 
her  unnecessary  deviation  from  the  voyage  desig- 
nated in  the  bond.  So,  too,  the  lender  does  not 

* The  Gratitudine,  3 Rob.  R.  240.  3 Mason,  255, 
f 3 Rob.  R.  240.  3 Mason,  255. 

10 


110 


master’s  authority. 


suffer  by  the  deterioration  of  the  goods  on  board 
from  any  latent , inherent  defect.  That  loss  must 
be  borne  by  the  shipper.* 

By  the  general  marine  law,  the  lender  on  bot- 
tomry, or  respondentia,  is  entitled  to  be  paid  out  of 
the  effects  saved,  so  far  as  those  effects  go,  if  the 
voyage  be  disastrous.! 

If  the  master  has  sufficient  money  belonging  to 
the  owners  on  board  to  make  the  necessary  repairs, 
he  cannot  hypothecate  the  cargo.  Or,  if  he  has 
sufficient  money  of  his  own  on  board,  he  is  bound 
to  use  it  before  hypothecating ; and  if  he  hypothe- 
cates the  cargo,  with  money  of  his  own.  or  of  the 
owners , on  board,  the  shippers  of  the  cargo  are  not 
bound  on  the  respondentia  bond  for  an  amount 
equal  to  the  sum  so  retained  on  board. J 

If  the  master  has  money  belonging  to  the  ship- 
pers on  board,  there  is  no  absolute  rule  requiring 
him  to  use  it  in  preference  to  hypothecating  the 
cargo.  It  is  left  to  his  discretion  to  act  in  such  a 
case  as  he  believes  most  for  the  advantage  of  the 
shippers 

If  the  master  be  under  the  necessity  of  hypothe- 
cating the  cargo  for  the  purpose  of  repairing  the 
ship,  the  shippers  have  a valid  lien , not  only  upon 
the  ship  and  freight , but  upon  any  goods  on  board, 
belonging  to  either  the  orvners,  or  the  master,  for 

* 3 Mason,  255.  Rob.  R.  240.  t Kent.  Com.  3 vol.  350, 
t 3 Mason,  255.  § 3 Mason,  255. 


CHARTER  PARTY. 


Ill 


whatever  sum  they  may  have  to  advance  towards 
discharging  the  loan  thus  created.* 

It  has  before  been  said  that  the  master  should 
hypothecate  the  whole  cargo,  if  any,  so  that  all  the 
shippers  may  equally  bear  the  burthen  of  sending 
forward  their  goods.  If,  however,  a part  only  of 
the  cargo  is  hypothecated,  courts  of  admiralty  will 
compel  the  owners  of  the  remaining  portion  to 
contribute  towards  the  repayment  of  the  loan,  pro- 
vided it  is  not  promptly  satisfied  from  the  assets  of 
the  ship  owners. f 
See  maritime  loans. 

OF  THE  OWNERS’  AND  MASTER’S  RELATION  TO  THE 
CARGO. 

Of  the  Charter  Party. 

The  contract  by  charter  party  is  an  agreement 
by  which  an  entire  ship,  or  some  principal  part  of 
her,  is  let  for  the  conveyance  of  goods,  on  a deter- 
mined voyage,  to  one  or  more  places.  This  mer- 
cantile lease  of  a ship  describes  the  parties , the 
ship , and  the  voyage , and  contains  on  the  part  of 
the  owners  a stipulation  as  to  sea-worthiness,  and 
as  to  the  time  when  the  vessel  shall  commence 
loading,  and  proceed  on  the  voyage.  It  also  con- 
tains the  exception  of  the  perils  of  the  sea,  for 
which  the  owners  and  master  are  not  usually  re- 


# 3 Mason,  255. 


t Ibid. 


112 


CHARTER  PARTY. 


sponsible,  and  such  others  as  may  be  agreed  on  by 
the  parties. 

On  the  part  of  the  charterer,  it  generally  con- 
tains a stipulation  to  load , and  unload , within  a 
given  time;  with  an  allowance  of  so  many  lay , or 
running  days  for  loading  and  unloading  the  cargo  ; 
and  also  the  rates  and  times  of  payment  of  the 
freight,  and  rate  of  demurrage  beyond  the  allotted 
days. 

When  the  goods  of  several  merchants,  uncon- 
nected with  each  other,  are  laden  on  board,  with- 
out any  particular  contract  of  affreightment  with 
any  individual  for  the  entire  ship,  the  vessel  is 
called  a general  ship,  because  open  to  all  mer- 
chants : but  when  one  or  more  merchants  contract 
for  the  ship  exclusively,  it  is  said  to  be  a chartered 
ship.  The  ship  may  be  let  in  whole,  or  in  part ; 
and  either  for  such  a quantity  of  goods  by  weight, 
or  such  a space  in  the  ship. 

Where  the  ship  has  been  chartered  for  the  car- 
riage of  goods  in  any  of  the  above  ways,  certain 
duties  and  liabilities  devolve  upon  the  master  and 
owners  with  respect  to  the  subsequent  proceedings 
under  the  charter  party. 

In  the  first  place,  it  is  the  duty  of  the  owner  of 
the  ship,  not  only  to  see  that  she  is  duly  equipped 
and  in  a suitable  condition  to  perform  the  voyage, 
but  he  is  bound  to  keep  her  in  that  condition 
throughout  the  voyage,  unless  he  be  prevented  by 
perils  of  the  sea.* 


* 3 Mass.  R.  481. 


CHARTER  PARTY. 


113 


The  ship  must  be  tight,  staunch,  and  strong. 
She  must  be  well  Furnished,  manned,  victualed, 
and,  in  all  respects,  equipped  in  the  usual  manner 
for  the  merchants’  service  in  such  a trade.  She 
must  be  fit  for  the  voyage  for  which  she  is  en- 
gaged. 

The  owner  of  the  ship  is  liable  to  the  freighter, 
like  a common  carrier,  for  all  losses  happening  to 
the  goods,  shipped  on  board,  except  those  that  are 
provided  against  by  the  Exceptions  in  the  charter 
party. 

If  the  goods  are  lost  by  reason  of  any  defect  in 
the  vessel,  whether  latent  or  visible , known  or  un- 
known, the  owner  is  answerable  to  the  freighter 
for  the  damage.* 

The  owner  is  also  bound  to  see  that  the  ship  is 
furnished  with  all  the  requisite  papers  according  to 
the  laws  of  the  country  to  which  she  belongs,  and 
according  to  treaties,  and  the  law  of  nations. f 

If  the  charter  party  contains  any  stipulation  on 
the  part  of  the  owner  to  keep  the  ship  in  good 
order  during  the  voyage,  the  entire  expense  of  the 
repairs  requisite  in  the  course  of  the  voyage,  are 
then  to  be  borne  by  the  owner. 

The  owner  does  not  insure  the  cargo  against  the 
perils  of  the  sea.  He  is,  however,  answerable  for 
his  own  fault,  or  negligence,  and  also  for  the  fault 
and  negligence  of  the  master  and  crew,  or  other 


* 3 Mass.  R.  485. 

10* 


f Kent,  3 vol.  205 


114 


CHARTER  PARTY. 


agents  employed  in  navigating  the  ship.  In  gen- 
eral he  is  answerable  for  all  losses  happening  to 
the  cargo,  other  than  the  excepted  cases  of  the  act 
of  God,  and  public  enemies.* 

The  responsibility  of  the  owner  begins  where 
that  of  the  wharfinger  ends;  and  generally  the 
owner’s  liability  begins  when  the  goods  are  deliv- 
ered to  the  master,  or  any  other  accredited  agent, 
either  on  the  wharf,  or  on  ship  hoard. 

If  the  owner  has  engaged  that  the  vessel  shall 
sail  with  convoy,  and  afterwards  she  sails  without 
convoy,  and  that  without  consent  of  the  freighters, 
the  owner  is  liable  for  any  loss  happening  from 
capture  or  detention.! 

A merchant  who  ships  goods  on  board  of  a ves- 
sel on  freight,  has  a lien  on  the  vessel  for  the  loss 
of  his  goods,  or  any  damage  they  may  sustain  from 
the  fault  or  neglect  of  the  master,  or  the  insuffi- 
ciency of  the  vessel.! 

For  the  liability  of  owners  and  charterers  for  re- 
pairs upon  the  ship,  or  supplies  furnished  to  her 
use,  see  chap.  7,  under  the  title,  “ who  are  liable  as 
owners 

The  Charterer.  The  charterer  is  bound,  on  his 
part,  to  observe  certain  stipulations  in  the  con- 
tract ; one  of  which  is  that  he  shall  not  detain  the 
ship  beyond  the  appointed  time,  or  if  no  time  be 

* Kent,  vol.  2,  lec.  40.  f 3 Esy.  N.  P.  R.  64. 

i 6 Amer.  Jurist,  5. 


BILL  OF  LADING. 


ltd 


appointed,  beyond  the  usual  time  to  load  the  vessel, 
or  to  deliver  the  cargo.* 

The  extra  days  beyond  the  lay  days,  (being  the 
days  allowed  to  load  and  unload  the  cargo,)  are 
called  days  of  demurrage . Demurrage  may  be- 
come due  either  by  the  ship’s  detention  for  the 
purpose  of  loading,  or  of  unloading  the  cargo, 
either  before  the  commencement  of  the  voyage,  or 
during  the  voyage,  or  after  the  voyage,  or  while 
waiting  for  convoy. f 

The  money  paid  for  such  detention  of  the  vessel 
is  also  called  demurrage. 

Both  parties  to  a contract  of  affreightment,  or 
charter  party , are  bound  to  be  ready  at  the  time 
appointed  for  the  loading  of  the  ship.  If  the  ship 
owner  be  not  ready,  the  charterer  may  avoid  his 
contract,  and  seek  another  ship : or  if  the  charterer 
be  not  prepared  to  put  on  board  his  goods,  the  own- 
er may  seek  another  cargo.  This  right  arises 
from  the  necessity  of  precision  and  punctuality  in 
all  maritime  transactions.  By  a very  short  delay 
the  proper  season  may  be  lost,  or  the  object  of  the 
voyage  defeated. 

OF  THE  BILL  OF  LADING. 

In  the  execution  of  the  contract  of  charter  party, 
the  master  of  the  ship  signs  a bill  of  lading , which 
is  an  acknowledgment  of  the  receipt  of  the  goods 


* Kent,  vol.  3,  p.  203, 


f Ibid, 


116 


BiLL  OF  LADING; 


on  board,  and  that  ho  has  assumed  the  conveyance 
of  them.  The  charter  party  is  the  contract  for  the 
hire  of  the  ship,  and  the  bill  of  lading  for  the  con- 
veyance of  the  cargo  ; and  though  it  be  signed  by 
the  master,  he  does  it  as  agent  for  the  oivners,  and 
it  is  a contract  binding  upon  them.* 

By  the  bill  of  lading,  the  master  engages,  as  a 
common  carrier,  to  carry  and  deliver  the  goods  to 
the  consignee,  or  his  order  ; and,  by  the  common 
law,  owners  were  responsible  for  damages  to  goods 
on  board  to  the  full  extent  of  the  loss.  In  England 
they  are  now  made  liable,  by  statute,  only  to  the 
Value  of  the  ship  and  freight ; and  this  statute  has 
been  followed  in  Massachusetts,  and  probably  in 
many  of  the  other  commercial  states  of  the 
Union. f 

There  are  commonly  three  or  more  bills  of  lad- 
ing. One  should  in  all  cases  be  retained  by  the 
master,  and  two  or  more  be  delivered  to  the  ship- 
per ; of  which  he  should  retain  one,  and  forward 
the  other  to  the  consignee  ; one  by  the  vessel  her- 
self, and  one  or  more,  by  other  conveyances. 

The  bill  of  lading  is  the  evidence  of  title  in  the 
goods  sent.  If  it  be  made  to  order  or  assigns , it  is 
transferable  in  the  market  like  a bill  of  exchange, 
or  other  negotiable  instrument.  The  endorsement 
and  delivery  of  it,  transfers  the  property  in  the 
goods  from  the  time  of  the  delivery. 


* Bewes  Lex.  Mer.  133.  142. 


1 2 Barn.  & Als.  2. 


CARRIAGE  OF  THE  GOODS. 


117 


OF  THE  CARRIAGE  OF  THE  GOODS. 

When  the  ship  is  hired,  and  the  cargo  laden  on 
board,  the  various  duties  of  the  owner , and  of  his 
agent,  the  master , arise  in  respect  to  the  commence- 
ment, progress,  and  termination  of  the  voyage  ; 
which  duties  are  extremely  important  to  the  inter- 
ests of  commerce,  and  have  been  well  and  accu- 
rately defined  in  the  marine  law. 

When  the  vessel  is  ready  to  sail,  the  master  is 
bound  to  proceed  upon  the  voyage  as  soon  as  the 
wind  and  tide  permit.  If  by  the  charter  party  the 
ship  is  to  sail  by  a given  day,  the  master  must  do 
it,  unless  prevented  by  necessity.* 

So,  if  there  be  an  undertaking  to  sail  with 
convoy,  he  is  bound  to  go  to  the  place  of  rendez- 
vous, and  place  himself  under  the  control  of  the 
convoy,  and  continue,  as  far  as  possible,  under 
their  protection  during  its  course. f 

The  master  is  bound,  likewise,  to  proceed  to  the 
port  of  delivery  without  delay,  and  without  any  un- 
necessary deviation  from  the  direct  and  usual 
course.  If  he  covenants  to  go  to  a loading  port  by 
a given  time,  he  must  do  it,  or  abide  the  forfeiture 
of  the  contract,  if  the  charterer  chooses  to  take  ad- 
vantage of  his  delay. 

The  master  has  no  right  to  substitute  another 
voyage  for  that  agreed  upon  between  the  owner 
# Kent,  vol.  8,  209.  f Ibid. 


118 


CARRIAGE  OF  THE  GOODS. 


and  the  freighter.  Such  a power  is  entirely  beyond 
the  scope  of  his  authority  as  master. 

If,  in  the  course  of  the  voyage,  the  ship  meet 
with  tempestuous  weather,  and  be  obliged  to  seek 
an  intermediate  port,  in  distress,  then  a responsibil- 
ity of  no  ordinary  character  may  be  thrown  upon 
the  master,  requiring  much  judgment  and  discrim- 
ination. In  ordinary  cases  the  master  is  the  agent 
of  the  ship  owner  only,  and  has  nothing  to  do  with 
the  cargo,  but  in  relation  to  its  safe  custody  and 
transportation.  But  in  case  of  disaster,  the  mas- 
ter may  become  the  agent  of  the  shippers  for  the 
protection  and  management  of  the  cargo. 

When  a disaster  has  happened  to  the  ship,  so 
that  the  master  has  been  under  the  necessity  of 
putting  into  a port  of  necessity,  the  first  principle 
that  the  master  should  bear  in  mind,  is,  that  it  is 
his  duty  to  convey  the  cargo  to  the  place  of  desti- 
nation ; this  is  the  purpose  for  which  he  has  been 
entrusted  with  it,  and  this  purpose  he  is  bound  to 
accomplish  by  every  reasonable  and  practicable 
method. 

Every  act  that  is  not  properly  and  strictly  in  fur- 
therance of  this  duty,  is  an  act  for  which  both  he, 
and  his  owners,  may  be  held  responsible.* 

If  practicable,  he  must  carry  them  forward  to 
the  port  of  destination  in  the  ship  on  board  of 
which  the  owner  placed  them,  as  that  is  the  vehi- 


* 5 Johns.  E . 262. 


CARRIAGE  OF  THE  GOODS. 


119 


cle  in  which,  by  contract,  they  were  to  be  trans- 
ported.* 

For  that  purpose,  if  the  vessel  is  capable  of  re- 
pair within  a reasonable  time,  the  master  may  de- 
tain the  goods  until  the  repairs  are  made,  and  then 
carry  them  on,  and  thus  earn  freight. f 

If  the  master  offers  to  send  them  forward  by 
another  vessel,  and  the  merchant  refuses,  he  will 
then  be  entitled  to  his  full  freight. 

But  if  the  goods  are  of  a •perishable  nature,  so 
that  their  detention  for  the  time  required  to  repair 
the  ship,  would  work  serious  injury  to  the  cargo, 
the  master  is  bound  to  tranship  them,  if  another 
vessel  can  be  had  in  that  or  a neighboring  port.J 

So,  too,  the  master  must  tranship  the  goods,  if 
the  vessel  be  so  far  disabled  as  to  be  unfit  for  re- 
pair. 

If  the  vessel  is  capable  of  being  repaired,  but  the 
master  is  without  the  necessary  funds  required  for 
the  purpose,  and  cannot  obtain  the  same  on  his 
own  credit,  nor  the  credit  of  the  owners,  nor  by  an 
hypothecation  of  the  vessel  and  freight,  one  or  both, 
he  may  hypothecate  the  whole  of  the  cargo  also ; 
and  if  he  cannot  obtain  the  necessary  funds  by 
either  of  these  steps,  he  may  then  sell  a part  of  the 
cargo.  But  before  proceeding  to  this  extremity,  (for 
nothing  but  the  most  extreme  exigency  can  author- 
ise this  measure,)  the  master  must  have  endeavor- 


* 3 Rob.  240.  3 Mason,  255. 


t Ibid. 


t Ibid. 


1:20 


CARRIAGE  OF  THE  GOODS. 


ed,in  vain,  to  raise  the  money  upon  his  own  credit) 
and  that  of  the  owners,  the  ship,  and  the  freight. 
If  in  neither  of  these  ways  the  money  can  be  pro- 
cured, and  the  master,  in  the  exercise  of  a sound 
discretion,  believes  it  to  be  for  the  interest  of  all 
concerned  that  the  cargo  should  go  forward,  he  is 
authorised  to  hypothecate  the  whole,  or  sell  a part, 
for  the  purpose  aforesaid.* 

The  master  has  no  authority  to  sell  the  whole  of 
the  cargo  for  the  purpose  of  repairing  the  ship,  be- 
cause it  can  never  be  for  the  interest  of  the  mer- 
chant that  the  whole  of  his  goods  should  be  sold 
to  assist  in  sending  forward  the  ship  empty.  He 
can  sell  only  a pai't  of  the  cargo,  for  the  mere  pur- 
pose of  repairing  her.  But  if  the  master  hypothe- 
cates the  cargo,  he  should  hypothecate  the  whole. f 

If  a portion  of  the  cargo  is  sold  at  the  port  of  ne- 
cessity for  the  purposes  of  the  ship,  her  owners 
must  account  with  the  owners  of  the  cargo  for  the 
same;  at  its  value  at  the  port  of  destination. 

If  he  hires  another  vessel  for  the  completion  of 
the  voyage,  he  may  charge  the  cargo  with  the  in- 
creased freight  arising  from  the  hire  of  the  new 
ship.J 

If  another  vessel  cannot  be  procured  to  carry  on 
the  cargo,  and  his  own  vessel  is  not  susceptible  of 
repair,  the  master  may  store  the  cargo,  or  sell  it,  as 
the  one  or  the  other  seems  to  him  the  most  for  the 


* 3 Rob.  R.  240.  3 Mason.  255.  f Ibid,  $.  5 Johns.  R.  262. 


CARRIAGE  OF  THE  GOODS. 


121 


interest  of  the  merchant.  Previous  to  selling  the 
cargo,  the  master  should  communicate  with  the 
merchant,  or  his  consignee,  if  practicable. 

Great  discretion  is  committed  to  the  master, 
with  regard  to  his  authority  over  the  cargo,  when 
driven  into  port  in  distress,  and  beyond  the  aid  or 
counsel  of  the  merchant  or  consignee.  He  is  to  do 
with  the  cargo  as  a prudent  owner  might  be  ex- 
pected to  do,  under  like  circumstances.  No  gen- 
eral rules  can  be  given  applicable  to  every  case. 
What  would  be  proper  with  respect  to  one  cargo, 
might  be  improper  with  respect  to  another ; the 
conduct  proper  to  be  adopted  with  respect  to  per- 
ishable goods,  would,  very  probably,  be  entirely 
improper  with  respect  to  a cargo  not  perishable. 
One  thing  might  be  fit  to  be  done  with  fish  and 
fruit,  and  another  with  timber  and  iron  ; one 
method  might  be  proper  to  be  pursued  in  distant 
regions,  another  in  the  vicinity  of  the  merchant; 
one  in  a frequented  navigation,  another  on  an  un- 
frequented shore.* 

If,  upon  arrival  at  an  intermediate  port,  the  mas- 
ter refuses  to  carry  the  goods  on  to  their  destina- 
tion, he  is  not  entitled  to  freight ; and  the  owner 
may,  under  such  circumstances,  demand  to  receive 
them  at  such  port  without  paying  any  freight. f 

But  it  is  otherwise  if  the  ship  owner  is  ready  to 
carry  forward  the  goods  ; and  he  may  detain  them 
while  the  ship  is  undergoing  necessary  repairs. J 

* 3 Rob.  240.  3 Mason,  257.  f 5 Mass.  R.  252.  $ 2 Pick.  104. 

11 


122 


CARRIAGE  OF  THE  GOODS. 


In  case  of  disaster,  the  freighter  is  bound  to  wait 
a reasonable  time  for  the  ship  to  be  repaired,  if  the 
master  requires  it  ; but  what  is  a reasonable  time 
for  the  merchant  to  wait,  is  an  inquiry  not  easily 
answered.  It  must  be  dependent  upon  the  facts 
applicable  to  the  place  and  the  time,  and  the  na- 
ture and  condition  of  the  cargo.* 

If  the  master  delivers  up  the  cargo  unnecessarily, 
in  an  intermediate  port,  to  any  other  person  than 
an  authorised  agent  of  the  shippers,  he  is  responsi- 
ble for  the  acts  of  such  person,  and  must  make 
good  any  loss  arising  through  his  fraud,  careless- 
ness, or  mismanagement. 

If  the  directions  to  the  master  are  to  proceed  to 
the  port  of  destination , and  there  deliver  the  cargo 
to  the  supercargo,  the  master  must  not  deliver  it 
up  to  his  management  in  an  intermediate  port.  If 
he  does,  he  is  responsible  for  his  acts. 

The  master  must,  in  case  of  capture  by  a bellig- 
erent, contribute  his  exertions  to  rescue  the  prop- 
erty from  condemnation,  by  interposing  a claim, 
and  exhibiting  in  support  of  it  the  documents  with 
which  he  has  been  furnished  for  the  protection  of 
the  cargo.  If,  by  his  negligence  in  the  perform- 
ance of  this  duty,  the  owner  of  the  goods  sustains 
damage,  the  master  is  responsible  to  him  to  the 
extent  of  the  damage. f 

Deviation.  When  the  voyage  is  commenced, 

the  master  must  pursue  it  in  the  most  safe,  direct, 

% 

* Clark  vs.  M.  F.  & M.Ins.  Co.  f 1 Johns.  R.  364. 


CARRIAGE  OF  THE  GOODS. 


123 


and  expeditious  manner.  Any  deviation  from  the 
usual  course  of  the  voyage,  or  any  unnecessary  de- 
lay., will  avoid  the  policy  of  insurance  upon  the 
goods,  and  render  the  master  and  owners  liable  in 
damages.  Stopping,  or  going  out  of  the  way  to 
relieve  a vessel  in  distress,  to  save  lives,  or  (o  ob- 
tain supplies,  or  to  avoid  certain  danger,  is  not  con- 
sidered a deviation  so  as  to  discharge  insurers.* 

A departure  from  the  course  of  the  voyage,  or  a 
delay , to  save  property , is  considered  a deviation  ; 
but  if  it  is  to  save  lives,  it  is  not  so  ; as  all  ques- 
tions of  mere  property  should  yield  to  principles  of 
humanity. 

So  if  the  ship  unnecessarily  deviates  from  the 
regular  course  of  the  voyage,  and  the  cargo  be  in- 
jured by  tempests  during  the  deviation,  the  master 
is  responsible  for  the  loss,  unless  it  can  be  shown 
that  the  same  loss,  not  only  might , but  must  have 
happened,  had  rfo  deviation  taken  place. f 

During  the  course  of  the  voyage,  the  master  is 
authorised,  in  case  of  a tempest,  or  other  fearful 
peril,  to  throw  overboard  a portion  of  the  cargo  for 
the  safety  of  the  remainder  ; or  he  may  be  justified 
in  throwing  over  the  whole,  where  the  safety  of 
the  lives  of  the  passengers  and  crew  demand  it. J 

If  the  cargo  be  injured  from  any  defect  in  the 
-vessel,  whether  latent,  or  obvious,  the  master  and 
owners  are  liable  for  the  damage.  If  the  damage 


* Kent,  3 vol.  312.  f 6 Bingham,  716.  $ 3 Bob.  B.  240. 


124 


DELIVERY  OF  THE  GOODS. 


arise  from  worms  perforating  the  bottom,  they  are 
liable,  unless  the  holes  were  made  during  the  voy- 
age* 

The  master  is  bound,  during  the  voyage,  to  take 
all  possible  care  of  the  cargo  ; and,  although  he  is 
not  responsible  for  injury  done  to  it  in  consequence 
of  a leak  occasioned  by  a storm,  tempest,  or  other 
inevitable  accident,  yet,  if  a leak  be  occasioned  by 
rats,  and  the  goods  be  spoiled,  the  master  has  been 
held  liable  for  the  damage,  because  guilty  of  fault. f 

But  it  was  formerly  held,  that  if  there  was  a cat 
on  board  the  ship,  the  master  should  not  be  deemed 
in  fault. 

OF  THE  DELIVERY  OF  THE  GOODS  AT  THE  PORT  OF 
DESTINATION. 

When  the  ship  has  arrived  at  her  port  of  desti- 
nation, the  master  must,  as  soon  as  he  has  reported 
himself  to  the  Custom  House  and  delivered  his 
letters,  proceed  to  deliver  the  cargo  to  the  consign- 
ees. This  is  to  be  done  in  case  the  consignee  pro- 
duces the  bill  of  lading  and  pays , or  secures  the 
payment  of  the  freight. 

The  maxim  of  the  law  is,  “ that  the  ship  is 
bound  to  the  cargo,  and  the  cargo  bound  to  the 
ship;”  that  is  to  say  — that  if  the  cargo,  during 
the  voyage,  is  injured  by  the  negligence  or  fraud 


* Abbott,  224. 


t Ibid. 


DELtVEkY  OP  THE  GOODS. 


125 


6f  the  owners,  or  master,  the  shipper  has  a lien  up- 
on the  ship  to  make  good  the  loss  ; and  if  the 
freight  upon  the  merchandise  laden  on  board  is  not 
promptly  paid,  when  safely  arrived  and  ready  for 
delivery  at  the  port  of  destination,  the  ship  owner 
has  a lien  upon  it,  and  the  master  may  retain  it 
against  every  other  person  until  the  freight  is 
paid.* 

But  the  master  cannot  detain  the  goods  on  hoard 
the  ship  until  the  freight  be  paid,  but  must,  if  the 
consignee,  or  merchant,  demand  it,  unlade  them  ; 
for  it  is  reasonable  that  the  merchant  should  have 
an  opportunity  to  examine  the  condition  of  them 
previous  to  payment. f 

The  master  must,  in  the  manner  of  delivering 
the  cargo,  have  regard  to  the  usage  of  the  particu- 
lar port  in  which  the  ship  happens  to  be.  One 
thing,  however,  the  master  is  to  bear  steadily  in 
mind,  that  his  lien  on  the  cargo  for  freight  remains 
no  longer  than  while  it  continues  in* his  possession. 
After  he  has  once  delivered  the  property,  the  lien 
upon  it  for  freight  is  gone , and  he  is  left  only  to 
the  usual  remedies  for  the  recovery  of  the  debt. 
He  cannot,  by  any  act  of  his  own,  such  as  by  tak- 
ing the  property  again  into  his  possession,  restore 
the  lien.  He  should,  therefore,  if  he  wishes  to 
preserve  the  lien,  be  careful  to  do  no  act  which 
may  be  construed  into  a delivery  of  the  goods.  He 

* 6 East.  622.  f Abbott,  part  3,  chap.  3,  sec.  10. 

U* 


126 


DELIVERY  OF  THE  GOODS, 


may  send  them  under  charge  of  his  officers,  or 
some  agent,  to  the  wharf,  or  store  them  until  the 
matter  is  adjusted,  when  he  will  have  a right  to 
charge  the  expenses  of  storage,  &c. 

The  general  rule  is,  that  delivery  at  the  wharf 
(when  there  are  no  special  directions  to  the  con- 
trary,) discharges  the  master.  But  this  is  to  be 
understood  with  some  qualification.  There  must 
be  a delivery  at  the  wharf  to  some  one  authorised 
to  receive  the  goods  ; or  due  notice  must  have  pre- 
viously been  given  to  the  consignee  of  the  time 
and  place  of  delivery.  The  master  cannot  dis- 
charge himself  by  leaving  them  naked  and  exposed 
at  the  wharf.* 

The  master’s  responsibility  continues  until  there 
is  actual  delivery,  or  some  act  that  is  equivalent, 
unless  the  owner,  or  his  agent,  has  previously  as- 
sumed the  charge  of  the  goods.  This  charge  the 
consignee  may  assume  by  giving  directions  where 
to  land  them,  by  taking  them  into  his  own  lighters, 
or  by  any  other  acts  consistent  with  acceptance  of, 
and  care  over,  them.f 

It  was  made  a question  by  the  court,  in  a case 
reported  in  4 Pick.  p.  373,  whether  the  consignee 
was  hound  to  receive  the  goods  at  all.  No  decis- 
ion was  had  upon  the  point.  It  would  always  be 
well,  however,  in  case  of  the  refusal  of  the  con- 
signee to  receive  the  goods,  or  to  receive  them  at 
the  particular  place  where  left,  for  the  master  to 
* Kent’s  Com.,  vol.  3.  p.  215.  t Ibid- 


DELIVER?  OF  THE  GOODS. 


127 


store  them , or  to  return  them  again  to  the  owner. 
If  the  master  should  leave  them  exposed  on  the 
wharf  and  damage  ensue,  he  possibly  might  be 
rendered  liable,  notwithstanding  notice  was  given 
to  the  consignee  of  the  time  and  place  of  delivery. 

If  the  consignee  demands  an  examination  of  the 
goods  before  freight  is  paid  upon  them,  to  see  that 
they  have  suffered  no  damage,  &c.,  it  is  the  duty 
of  the  master  to  unlade  them,  but  to  retain  possess- 
ion until  the  freight  is  adjusted.* 

It  is  said  to  be  the  practice  in  England,  for  the 
master  to  take  security  from  the  merchants  before 
he  delivers  the  goods,  for  payment  of  freight,  prim* 
age , and  their  proportion  of  the  petty  averagef 

To  whom  Hie  delivery  shall  be  made.  It  is  often 
difficult  for  the  master  to  know  to  whom  the  cargo 
may  safely  be  delivered.  Sometimes  the  contest 
will  be  between  the  consignor  and  consignee, 
sometimes  between  the  consignor  and  the  assignee 
of  the  consignee. 

In  any  case  where  two  or  more  parties  claim  the 
custody  of  the  goods,  the  master  should  not  deliver 
them  up,  without  first  obtaining  from  the  party  re- 
ceiving them  a bond  of  indemnity,  covering  the 
value  of  the  goods  and  all  costs  that  may  result 
from  such  delivery.  Where  the  different  claims 
are  likely  to  be  contested,  the  least  vexatious  pro- 
ceeding is  for  the  master  to  deposit  the  goods  with 
some  bailee,  and  apply  to  the  court  of  Chancery  to 

* Abbott,  p.  3,  ch.  3.  f Ibid.  p.  7,  ch.  3,  sec.  11. 


128 


DELIVERY  OF  THE  GOOfiS. 


compel  the  contending  parties  to  litigate  their 
rights  by  an  action  between  themselves.* 

If  the  master  is  so  situated  as  to  be  under  the 
necessity  of  exercising  his  discretion  about  the  de- 
livery, and  the  bill  of  lading  has  not  been  assigned 
over  by  the  consignee,  and  he  has  failed ; without 
doubt  the  master  should  deliver  the  cargo  to  the 
person  who  claims  for  the  use  of  the  consignor. 

If  the  consignor  has  endorsed  bills  of  lading  to 
two  or  more  individuals,  the  master  should  deliver 
the  cargo  to  the  person  to  whom  a bill  of  the  lading 
was  first  endorsed. 

In  case  the  consignee  becomes  insolvent  during 
the  transportation  of  the  goods,  the  consignor  may 
stop  them  before  they  come  to  his  hands,  if  the 
rights  of  no  third  parties  intervene. 

Goods  lost  in  a lighter.  If  the  goods  are  lost 
after  the  owner  of  them  has  taken  them  from  the 
ship  into  a lighter,  it  is  his  own  loss;  but  it  is 
otherwise  if  the  goods  are  sent  from  the  ship  by 
the  ship’s  boat,  which  is  considered  a part  of  the 
ship  and  voyage.  Yet  if  the  owner  of  any  goods 
sends  his  servant  with  them,  the  master,  or  lighter- 
man, is  not  liable  if  they  be  lost. 

If  the  vessel  can  be  moored  alongside  of  a wharf 
or  quay,  there  is  no  difficulty;  as  the  goods  are 
then  delivered  to  the  wharfinger.  But  when  she 
is  obliged  to  discharge  in  a river,  or  open  roadstead. 


* Abbott,  part  3,  ch.  9,  sec.  25. 


RESPONSIBILITY  OF  THE  SHIP  OWNER.  129 


and  boats  or  other  craft  are  employed  in  delivering 
the  cargo,  it  is  necessary  to  ascertain  the  custom. 

In  discharging  the  cargo,  the  master  should  take 
a receipt  upon  the  bill  of  lading  for  the  goods  de- 
livered. 

The  master  is  at  all  times  bound  to  provide  ropes, 
&c.,  proper  for  the  actual  reception  of  the  goods  on 
board,  or  for  delivering  them  on  shore;  for  if  a 
cask,  or  other  article,  in  hoisting  it  to  or  from  the 
ship,  or  in  lowering  it  into  the  ship’s  hold,  accident- 
ally fall  and  sustain  injury,  the  master  or  owners 
of  the  ship  must  make  good  the  loss. 

OF  THE  RESPONSIBILITY  OF  THE  SHIP  OWNER. 

Without  some  special  agreement  to  the  contra- 
ry, the  owners  are  liable  for  all  losses  happening  to 
the  cargo,  during  the  voyage,  which  are  not  inclu- 
ded under  the  two  well  known  exceptions,  act  of 
God  and  public  enemies.  Losses  happening  from 
the  act  of  God , as  understood  and  practiced  upon, 
include  all  perils  of  the  sea  which  could  not  have 
been  prevented  by  human  foresight  and  prudence. 
It  is  a loss  happening  in  spite  of  all  human  effort 
and  sagacity.  It  will  therefore  be  seen  that  a de- 
struction by  the  violence  of  the  winds  or  waves , by 
lightning , undiscovered  rocks  or  shoals,  or  a cap- 
ture by  pirates,  are  all  causes  which  will  excuse 
the  owner  for  the  non-delivery  of  the  cargo.* 

* 5 Term.  R.  p.  3S9. 


/ 


130  RESPONSIBILITY  OF  THE  SHIP  OWNER. 

It  seems  to  have  been  held  that  the  owners  are 
liable  for  any  loss  to  the  shipper  arising  from  the 
happening  of  a fire  on  board.  This  is  undoubtedly 
true  where  the  fire  proceeds  from  the  gross  careless- 
ness of  those  employed  to  navigate  the  ship.  Fire 
occasioned  by  lightning,  or  spontaneous  combus- 
tion, the  ship  owner  is  clearly  not  liable  for.* 

So,  if  the  cargo  be  lost  by  means  of  the  ship’s 
running  upon  a rock,  or  sand  bar,  which  is  gener- 
ally known,  and  the  ship  be  not  forced  upon  it  by 
adverse  winds  or  tempests,  the  owner  is  liable  for 
the  loss.f 

But  if  the  ship  was  forced  upon  such  a rock  or 
shallow  by  winds  or  tempests,  or  if  the  bar  was  oc- 
casioned by  a recent  and  sudden  collection  of  sand 
in  a place  where  ships  could  before  sail  with  safetjr, 
the  owner  is  not  liable  for  the  loss.;J; 

The  owner’s  liability,  unless  provided  against, 
extends  to  all  the  authorised , or  unauthorised  acts 
of  the  master  and  mariners,  by  which  the  shipper 
may  be  injured  in  his  property  laden  on  board. 

In  Massachusetts,  the  ship  owner  is,  by  statute, 
only  liable  to  the  extent  of  his  interest  in  the  ship 
and  freight,  for  losses  occasioned  by  the  negligence 
or  fraud  of  the  master  or  mariners.  But  without 
some  statute  to  the  contrary,  the  owner  is  liable  to 
the  full  extent  of  the  injury. <§> 


* 1 Term  R.  p.  27.  f Abbott,  part  3,  cb.  4,  sec.  1. 

$ Abbott,  part  3,  ch.  4,  sec.  1.  § Revised  Statutes. 


BAD  STOWAGE. DUTIES  OE  THE  SHIPPER.  131 


OF  THE  MASTER’S  LIABILITY  FOR  BAD  STOWAGE. 

The  master  is  liable  for  all  injuries  to  the  goods 
occasioned  by  bad  stowage,  for  the  master  must  see 
all  things  forthcoming  that  are  delivered  to  his 
charge,  act  of  God , perils  of  the  sea,  and  public 
enemies  only  excepted. 

In  stowing  the  cargo,  the  master  should  allow 
sufficient  for  damage  in  the  flat  bottom,  and  in  the 
bilges. 

The  master  cannot  stow  goods  on  deck  without 
the  consent  of  the  owner.  If  they  are  so  stowed, 
without  his  consent,  they  are  at  the  risk  of  the 
master. 


OF  THE  DUTIES  OF  THE  SHIPPER. 

We  do  not  intend  here  to  speak  of  the  duties  of 
the  shipper  when  he  is  the  charterer,  and  reserves 
to  himself  the  appointment  of  the  master  and  mari- 
ners and  the  general  control  of  the  ship.  He  is 
then  the  owner  for  the  time,  and  responsible  as 
such. 

Where  the  command  of  the  ship  is  reserved  to 
the  owner,  the  merchant  cannot  detain  her  beyond 
the  stipulated  time,  or  employ  her  in  any  other 
than  the  stipulated  service,  and  if  he  does  he  is 
liable  in  damages. 

If  the  shipper  puts  on  board  prohibited  or  con- 
traband goods,  by  means  whereof  the  ship  is  sub- 


132 


PAYMENT  OF  FREIGHT. 


jected  to  detention  and  forfeiture,  he  must  answer 
to  the  ship  owner  for  the  consequences  of  the  act.* 

If  the  merchant  declines  to  lade  the  ship  accord- 
ing to  contract,  or  to  furnish  a return  cargo  as  he 
had  engaged  to  do,  he  must  render  in  damages  due 
compensation  for  the  loss. 

OF  THE  PAYMENT  OF  FREIGHT. 

The  word  “ freight  ” is  as  often  made  use  of  in 
common  conversation  to  denote  the  cargo  with 
which  the  vessel  is  laden,  as  the  price  for  the  trans- 
portation of  the  same.  But  in  legal  language, 
freight  is  seldom  mentioned  in  any  other  connec- 
tion, than  as  the  price  of  the  carriage  of  goods.  It 
is  not  used  in  this  volume  as  denoting  the  cargo. 

The  price  for  the  carriage  of  goods  from  one  port 
to  another  is  generally  fixed  by  the  charter  party, 
or  by  special  agreement  between  the  parties.  If, 
however,  no  such  agreement  is  made,  the  shipper 
is  bound  to  pay  the  customary  price,  as  ascertained 
by  the  usage  of  trade  and  the  reason  of  the  case. 

If  the  merchant  hires  the  whole  of  a ship,  or  a 
certain  part  of  her,  for  the  voyage,  he  must  pay  the 
full  price  agreed  upon,  though  he  does  not  fully 
lade  her.  It  is  otherwise  if  he  only  agrees  to  pay 
in  proportion  to  the  goods  shipped  on  board. 

If  the  merchant  engages  to  furnish  a return 
cargo,  and  neglects  to  do  it,  and  lets  the  ship  re- 
turn in  ballast,  he  must  make  compensation  to  the 


* 3 Johns.  R.  105. 


PAYMENT  OF  FREIGHT. 


133 


amount  of  the  freight  which  such  return  cargo 
would  have  paid.  This  is  termed  dead  freight* 

If  there  be  no  express  agreement  in  the  case,  the 
master  is  not  bound  to  part  with  the  goods,  until 
the  freight  be  paid.  He  should  not,  however,  omit 
to  offer  to  deliver  the  cargo  upon  a payment  of  the 
freight ; and  if  the  consignee  demand  it,  to  unlade 
it  for  his  inspection. 

Wl  ten  the  regulations  of  the  revenue  require  the 
goods  to  be  lauded,  and  deposited  in  a public  ware- 
house. the  master  may  enter  them  in  his  own  name, 
and  preserve  the  lien. 

Where  the  owner  of  the  ship  appoints  the  mas- 
ter, he  has  a lien  upon  the  cargo  for  the  payment 
of  the  freight.  But  where  the  merchant,  or  ship- 
per, appoints  the  master  and  mariners,  and  is  the 
owner  for  the  voyage,  the  ship  owner  has  no  lien 
on  the  cargo  for  payment  of  the  freight. 

So  the  master  has  no  lien  upon  the  cargo  where 
the  payment  of  freight  is  made  payable  at  another, 
and  more  distant  period,  than  that  for  the  delivery 
of  the  cargo. f 

The  lien  is  as  perfect  where  goods  arc  laden  on 
board  of  a general  ship,  as  when  laden  under  a 
charter  party. X 

The  consignee,  if  he  accepts  the  goods,  makes 
himself  responsible  for  the  freight,  where  the  bill 

f Kent’s  Com.,  vol.  3,  p.  221. 

\ Ibid. 


* Roceus,  note  72 — 75. 


134 


PAYMENT  OF  FREIGHT. 


of  lading  stipulates  for  the  payment  of  freight  by 
such  consignee.* 

If  the  consignee,  after  receiving  the  goods,  re- 
fuses, or  is  unable  to  pay  the  freight,  the  master 
still  has  his  remedy  over  against  the  shipper  on  the 
charier  party. f 

If  part  of  the  cargo  be  sold  on  the  voyage  from 
necessity,  the  owner  pays  the  value  of  the  goods  so 
sold  at  the  port  of  delivery,  deducting  his  freight 
for  the  whole  voyage,  ecpially  as  if  the  goods  had 
arrived. 

By  the  marine  ordinance  of  France,  as  cited  by 
Pothier,  “ no  freight  is  due  for  goods  lost  by  ship- 
wreck, or  running  aground,  pillaged  by  pirates  or 
captured  by  enemies  ; and  if  there  is  not  an  agree- 
ment to  the  contrary,  the  master  is  bound,  in  such 
case,  to  restore  that  which  may  have  been  paid  him 
in  advance.”  The  reason  is,  says  Pothier,  that 
affliction  ought  not  to  be  heaped  upon  affliction ; 
the  shipper  having  lost  his  goods,  it  would  be  hard 
to  make  him  pay  freight ; if  he  has  had  the  enjoy- 
ment of  the  ship  during  the  time  she  was  occupied 
with  his  goods,  it  is  an  enjoyment  which,  through 
his  loss,  has  proved  useless  to  him.J 

If  casks  contain  wine,  rum,  or  other  liquors,  or 
sugar,  and  the  contents  be  washed  out,  and  wasted, 
and  lost  by  the  perils  of  the  sea,  so  that  the  casks 
arrive  empty,  no  freight  is  due  for  them  ; but  if  the 

* 2 Camp.  N.  P.  587.  13  East.  399. 

f Kent’s  Com.  vol.  3,  p.  222.  | Cushing’s  Pothier,  p.  37.- 


PAYMENT  OF  FREIGHT. 


135 


loss  arises  from  defect  ill  the  cask,  leakage , or  in- 
herent waste,  and  not  from  bad  stowage,  the  ship 
owner  is  entitled  to  freight.* 

By  the  maritime  ordinance,  as  cited  above,  it 
Avould  seem  that  the  merchant  freighter  should 
abandon  to  the  ship  owner,  the  casks,  &c.,  on 
which  freight  is  due,  in  consequence  of  leakage. f 
Freight  is  to  be  paid  on  all  live  stock  put  on 
board,  unless  the  animals  die  through  some  neglect 
or  fault  of  the  master.  It  is  said,  however,  that  an 
agreement  for  the  “ transportation ” of  the  animals 
would  require  that  they  should  be  delivered  at  the 
port  of  destination  ; and,  consequently,  if  any  die 
on  the  voyage  no  freight  is  due. I 

If  freight  be  paid  in  advance,  and  the  goods  do 
not  arrive,  the  money  so  paid  may  be  recovered 
back.<§> 

.The  general  rule  is,  that  to  entitle  the  ship 
owner  to  any  freight  under  the  charter  party,  the 
whole  of  the  goods  shipped  on  board  must  be  deliv- 
ered at  the  port  of  destination.  The  contract  is  an 
entire  contract,  and  unless  fully  performed  by  de- 
livery of  the  whole  cargo,  no  freight  is  due  under 
the  charter  party.  The  stipulated  voyage  must  be 
actually  performed.  A partial  performance  is  not 
sufficient,  nor  can  a partial  payment  be  claimed, 
except  in  special  cases.  || 

* 2 Johns.  R.  327.  Molloy,  book  2,  chap.  4,  sec.  14. 
f Cushing’s  Pothier,  p.  34.  J Kent’s  Com.  vol.  3,  p.  225. 

§ 3 Pick.  20.  ||  Kent’s  Com.  vol.  3,  p.  228. 


136 


PAYMENT  Of  FREIGHT. 


Where  a ship  is  chartered  for  one  voyage,  out- 
ward and  homeward,  and  the  sum  agreed  upon  for 
the  same  is  not  apportioned,  so  much  for  the  out- 
ward, and  so  much  for  the  homeward  voyage,  but 
stands  in  gross,  so  much  for  the  whole  voyage, — 
the  outward  and  homeward  | assages  are  not  divis- 
able.  Therefore,  if  the  ship  performs  the  outward, 
and  fails  to  perform  the  homeward  voyage,  no 
freight  is  recoverable  for  either  * 

Where  a ship  was  injured  by  collision  with 
another  ship,  and  deserted  by  her  crew,  and  was 
afterwards  picked  up  and  brought  into  port  and  li- 
beled for  salvage,  and  the  owners  of  the  cargo  re- 
ceived 5U  per  cent,  of  the  value  of  the  same,  it  was 
decided  that  nothing  was  due  the  ship  owner  for 
freight.  The  cargo  actually  arrived  safe.f 

There  are  special  cases  where  an  apportionment 
of  freight  is  allowed.  This  usually  happens  when 
the  vessel  is  forced  into  a port  short  of  her  desti- 
nation, and  cannot  finish  the  voyage.  In  that  case, 
if  the  owner  of  the  goods  will  not  allow  the  mas- 
ter a reasonable  time  to  repair,  or  to  proceed  in 
another  ship,  the  master  will  be  entitled  to  the 
whole  freight ; because  the  freighter  is  the  cause  of 
the  contract  not  being  performed. 

Cut  if  the  shipper  consents,  and  the  master  re- 
fuses to  go  on,  he  is  not  entitled  to  freight,  because 
he  has  not  performed  his  contract.  To  entitle  him- 
self to  freight,  the  master  must  proceed,  or  offer  to 
* 2 Chilly’s  Rep.  66G.  5 Mass.  252.  t 1 Johns.  R.  24. 


DUTY  TO  EMPLOY  A PILOT. 


137 


proceed,  in  another  vessel,  or  repair  his  own,  and 
take  on  the  cargo.* 

If  the  merchant  accepts  the  goods  at  the  inter- 
mediate port,  the  general  rule  of  the  marine  law  is, 
that  freight  is  to  be  paid  according  to  the  propor- 
tion of  the  voyage  performed,  and  the  law  will  im- 
ply such  a contract.  The  acceptance  must,  how- 
ever, be  voluntary,  and  not  one  forced  upon  the 
merchant. f 

The  proportion  of  freight  earned,  is  not  ascer- 
tained by  a comparison  of  the  length  of  the  voyage 
from  the  port  of  lading,  to  the  port  of  destination, 
with  the  length  of  the  voyage  actually  performed ; 
but  the  proportion  is  rather  ascertained  by  the 
amount  of  benefit  actually  rendered  to  the  shipper. 
Therefore,  the  expense  of  transporting  the  goods 
from  the  port  of  distress , to  the  port  of  destination , 
must  first  be  ascertained,  and  that  sum  being  de- 
ducted from  the  sum  agreed  upon  for  the  whole 
voyage,  the  remainder  is  the  sum  properly  due  the 
ship  owner  for  freight,  pro  rata  itineris.% 

OF  THE  DUTY  OF  THE  MASTER  TO  EMPLOY  A PILOT. 

It  is  the  duty  of  the  master  engaged  in  a for- 
eign trade,  to  put  his  ship  under  the  charge  of  a 
pilot,  both  on  his  outward , and  horneioard  voyage, 
when  he  is  within  the  usual  limits  of  the  pilot’s 
employment. § 

* 2 Burns’  Rep.,  883. 

$ 5 Mass.  R.  252. 

12* 


f 2 Johns.  R.  323. 

§ Kent,  vol.  3,  p.  176. 


138 


DUTY  TO  EMPLOY  A.  PILOT. 


If  a master  of  a ship  find  himself,  in  tempestuous 
weather,  in  any  reputed  dangerous  place,  usually 
denominated  pilot's  water,  and  a pilot  offer  to  come 
on  board,  which  offer  he  refuses  to  accept,  the  mas- 
ter, in  such  a case,  is  liable  to  his  owners,  freight- 
ers, or  insurers,  for  the  damage  or  loss  of  ship  and 
cargo,  if  either  happen  in  his  attempting  a passage 
without  a pilot.* 

If  the  master  at  a foreign  port  attempt  to  obtain 
a pilot,  and  fail,  and  then  in  the  exercise  of  his 
best  discretion,  endeavor  to  enter  the  port,  and 
ground,  the  insurer  is  not  discharged-! 

If  the  master  approach  a port  in  the  night,  he 
must  make  signals  for  a pilot,  and  wait  a reason- 
able time  for  one,  and  if  he  attempt  to  enter  the 
port  without  one,  except  in  case  of  extreme  neces- 
sity, the  insurers  are  discharged. J 

Where  the  approach  or  entrance  to  harbors,  &c., 
is  hazardous  and  difficult,  the  taking  a pilot  is  ob- 
ligatory on  the  master  ; otherwise,  in  case  of  loss, 
he  must  make  it  good.<§> 

After  a pilot  is  taken  on  board,  the  master  has 
no  longer  any  command  of  the  ship  till  she  is  safe 
in  the  harbor  ; but  then  the  master  resumes  the 
government  of  the  same,  and  is  to  see  to  her  bed 
and  lying,  the  pilot  being  no  longer  liable,  though 
for  his  own  convenience  he  may  still  be  on  board. 

* Blunt’s  Com.  Digest,  p.  324.  f Barn,  and  Adolph,  p.  380. 

J Blunt's  Com.  Digest.  § Ibid, 


139 


master’s  protest. 


Op  the  master’s  duty  to  protest  in  case  op 

DISASTER. 

A protest  should  be  made  by  the  master  in  case 
of  accident,  either  to  vessel,  or  cargo,  at  the  first 
port  he  puts  into.  Every  occurrence,  happening 
during  the  voyage,  which  may  operate  to  the  dis- 
advantage, or  detriment  of  any  concerned  in  the 
voyage,  should  be  protested  against.  This  protest 
should  be  made  within  twenty-four  hours  after  his 
arrival,  at  the  next  port  after  the  happening  of  the 
disaster. 

The  master  should  note  in  his  log  book  all  the 
material  occurrences  which  happened  during  the 
voyage.  By  this  means  much  information  may  be 
thrown  upon  the  events  of  the  voyage,  which  after- 
wards maybe  subject  to  dispute  or  litigation.  Care 
should  be  had,  that  no  erasures  are  made,  or  leaves 
blotted,  or  torn  ; since  all  these  circumstances  tend 
very  much  to  excite  suspicion  of  alteration,  and 
weaken  confidence  in  its  correctness. 

Masters  of  American  vessels  must  make  a protest 
when  any  of  their  seamen  have  been  impressed, 
and  transmit  the  same  to  the  nearest  consul,  or  the 
minister  of  the  United  States,  and  keep  a duplicate 
for  the  Secretary  of  State, 


140 


collision  of  ships. 


OF  THE  Master’s  DUTY  RESPECTING  A COLLISION  OF 
SHIPS. 

The  facts,  in  case  of  a collision  of  vessels,  are 
generally  difficult  of  ascertainment,  and  therefore  it 
is  often  hard  to  decide  who  is  the  party  in  fault. 
Such  accidents  usually  happen  in  the  darkness  of 
night,  or  in  a storm,  and  are  necessarily  accompa- 
nied with  confusion  and  agitation.  But  when  the 
facts  are  once  ascertained,  the  principles  upon 
which  the  loss  is  to  be  adjusted  is  very  well  set- 
tled by  the  maritime  law.  The  party  in  fault 
must  pay  all  the  damages ; and  that,  too,  whether 
it  arose  from  actual,  wilful  intent  to  injure,  or,  from 
heedlessness,  or  want  of  due  care  and  skill  in  the 
management  of  the  vessel. 

There  are  settled  nautical  rules  by  which,  in 
most  cases,  the  want  of  skill,  care,  or  duty  may  be 
ascertained. 

The  vessel  that  has  the  wind  free,  must  get  out 
of  the  way  of  the  vessel  that  is  close  hauled. 

The  vessel  on  the  starboard  tack  has  a right  to 
keep  her  wind,  and  the  vessel  on  the  larboard  tack 
is  bound  to  bear  up,  or  heave  about  to  avoid  dan- 
ger, or  be  answerable  for  the  consequences. 

The  vessel  to  windward  is  to  keep  away  when 
both  vessels  are  going  the  same  course  in  a narrow 
channel,  and  there  is  danger  of  running  afoul  of 
each  other. 


COLLISION  OF  SHIPS. 


141 


la  the  case  of  steam  vessels,  which  have  greater 
power,  and  are  more  tinder  command,  they  are 
bound  always  to  give  way  to  a vessel  with  sails,  in 
a case  of  collision. 

So,  a neglect  of  due  means  to  check  a vessel  en- 
tering a river  or  harbor,  where  others  lie  at  anchor, 
is  a fault  which  creates  responsibility  for  damages 
which  may  ensue. 

Where  the  collision  has  arisen  from  causes  over 
which  neither  party  could  have  had  any  control, 
and  without,  any  fault,  open  or  concealed,  the 
damage  must  be  borne  where  it  falls. 

When  both  parties  are  equally  in  fault,  or  where 
the  causes  of  the  collision  are  undiscoverable,  then 
both  vessels  contribute  equally  to  repair  the  loss 
without  respect  to  the  relative  value  of  the  injured 
vessels. 

By  a late  decision  in  the  English  House  of  Lords, 
it  would  seem  to  be  held  that  the  cargo  is  liable  to 
contribution  in  case  of  loss  by  collision,  and,  also, 
on  the  other  hand,  entitled  to  share  in  the  salvage. 

In  Massachusetts,  by  special  statute,  the  owner 
s made  answerable  only  for  the  wrongs  and  de- 
faults of  his  master  or  crew,  to  the  extent  of  his 
interest  in  the  ship. 

For  article  on  11  deviation  by  the  master ,”  see 
article  on  “ deviation ,”  under  the  head  of  11  marine 
insurance 


142 


THE  MATE. 


CHAPTER  XII. 

OF  THE  MATE. 

In  the  absence  of  the  master,  the  mate  is  en- 
trusted with  the  care  of  the  ship,  and  the  govern- 
ment and  management  of  the  crew;  and  if  a sea- 
man be  wrongfully  dismissed  by  him,  the  owners 
are  liable  therefor  as  the  act  of  their  agent.* 

Upon  the  death  of  the  master  the  mate  succeeds 
to  his  place  by  force  of  his  office,  and  by  operation 
of  law.  He  acts  instead  of  the  master,  in  all  cases 
where  the  latter  is  dead  or  absent.  He  does  not 
cease  to  be  mate  in  such  cases ; but  he  has  thrown 
upon  him,  cumilatively,  the  duties  of  master.  He 
is  still  a mate,  acting  as  master,  and  may  sue  for 
his  wages  as  mate  in  the  admiralty.f 

But  in  case  of  the  death,  or  other  removal  of  the 
master  abroad,  the  mate  cannot  claim  to  exercise  the 
authority  of  master  as  an  incident  to  his  office. 
The  master  may  appoint  some  one  else  to  succeed 
him  ; or  the  American  consular  agent,  or  consignee 
of  the  owner,  each,  in  the  absence  of  the  other, 
have  a right  to  select  his  successor. 

The  mate  is,  in  sickness,  entitled  to  be  cured  at 
the  expense  of  the  ship,  in  the  same  manner  as 


* 4 Mason’s  E.  541. 


f Sumner’s  R.  151. 


THE  MATE. 


143 


a seaman.  And,  therefore,  if  he  is  put  on  shore, 
from  sickness,  for  the  convenience  of  the  ship,  his 
expenses  for  medicines,  advice,  attendance  and 
hoard,  are  to  be  borne  by  the  ship  owner. 

The  mate  may  forfeit  his  right  to  command  and 
wages,  by  fraudulent,  unfaithful,  and  illegal  prac- 
tices ; by  gross  and  repeated  negligence,  or  flagrant, 
wilful,  and  unjustifiable  disobedience  ; by  incapacity 
brought  upon  him  by  his  own  fault,  or  palpable 
want  of  skill  in  his  profession  ; but  the  causes  of 
removal  should  be  evident,  strong,  and  legally  im- 
portant.* 

Where  a master  and  mate  were  jointly  sued  in 
the  admiralty  by  a seaman  for  an  assault  and  bat- 
tery, and  it  appeared  that  the  mate  assisted  in  some 
of  the  acts  complained  of;  held,  that  the  mate 
might  be  justified  for  assisting,  in  obedience  to  the 
master’s  orders,  though  the  conduct  of  the  master 
might  have  been,  on  the  whole,  illegal  and  unjus- 
tifiable ; and  that  the  libel,  in  such  a case,  might 
be  dismissed  in  respect  to  the  mate,  and  he  be 
made  a witness  for  the  master. f 

When  a seaman  is  appointed  to  act  as  mate  of  a 
vessel,  by  the  master,  during  the  voyage,  he  may 
be  removed  by  the  master  for  incompetency,  and 
is  not  entitled  to  any  other  wages  than  those  con- 
tracted for  in  the  articles. J 

It  seems,  that  temporary  appointments,  made  by 
the  master,  on  an  emergency,  are  held  at  his  pleas- 
* 4 Wash.  R.  338.  f 7 Amer.  Jurist,  70.  ^ Gil.  It.  83. 


144 


THE  MATE. 


lire  and  stand  on  a different  footing  from  that  of 
a party  originally  shipped  in  the  character  in  ques- 
tion. making  his  contract  for  the  office  and  for  the 
wages  belonging  to  it. 

In  the  absence  of  the  master,  the  next  highest 
officer  on  boar dsncceeds  to  his  rights  and  authority 
for  the  time,  so  far  as  they  are  necessary  for  the 
due  performance  of  the  ship’s  duties. 

The  master  and  mate,  as  well  as  the  seamen,  are 
entitled  to  medical  advice  and  attendance,  at  the 
expanse  of  the  ship.  If  they  are  put  on  shore  from 
sickness,  for  the  convenience  of  the  ship,  their  ex- 
penses for  medicines,  advice,  attendance  and  board, 
are  to  be  borne  by  the  ship  owner.* 

Neither  the  mate,  nor  any  subordinate  officer, 
lias  authority  to  punish  any  seaman  even  for  impro- 
per behavior,  or  misconduct  to  himself  personally, 
when  the  master  is  on  board,  except  by  the  author- 
ity, expressed  or  implied,  of  the  master,  or  when 
the  necessities  of  the  ship’s  service  require  instan- 
( ancons  punishment,  to  compel  a seaman  to  do  his 
duty. 


* 3 Gilpin’s  R. 


OF  SEAMEN. 


145 


CHAPTER  XIII. 

OF  SEAMEN. 

Of  seamen — Of  laws  for  their  protection — Of  laws  for  their  relief 
in  American  ports — Of  laws  for  their  relief  in  foreign  porls — Of 
medicine  and  medical  advice  and  attendance — Of  provisions  and 
water — Whet,  mariners  may  refuse  to  proceed  on  the  voyage — 
Of  seamen’s  wages — Of  their  liability  to  forfeit  their  wages — Of 
their  liability  to  lose  their  wages — Of  their  duty  in  case  of  disas- 
ter— Of  State  laws  relating  to  seamen — Of  embezzlement  by 
seamen. 

Seamen  are  a peculiar  class,  and  have  their  own 
peculiar  characteristics.  Perhaps  there  is  no  other 
class  among  us,  so  strongly  and  distinctly  marked. 
The  natural  effect  of  their  home  on  the  deep,  with 
its  unchanging  scenery,  unless  broken  by  the  tem- 
pest, and  its  regular  routine  of  duties,  except  when 
interrupted  by  calamity,  is  to  assimilate  their  char- 
acters to  each  other  in  a remarkable  degree.  There 
is  connected  with  their  calling  peculiar  dangers, 
privations  and  sufferings  ; and  they  have  their  own 
peculiar  habits,  and  manners,  and  distinctive  modes 
of  thought,  of  feeling,  expression  and  of  action. 
They  are  thrown  by  their  situation  under  different 
influences  from  other  men,  and  exposed  to  different 
temptations.  They  are  generally  less  favored  than 
others  with  the  advantages  of  education;  and  by  their 
position,  are  rendered  less  likely  to  become  familiar 
with  the  formalities  and  stratagems  of  the  world. 

13 


146 


OF  SEAMEN. 


Hence  it  is  that  they  are  scarcely  to  be  judged 
by  the  same  rules  as  other  men,  nor  their  errors 
and  foibles  weighed  in  the  same  balance.  They 
are.  therefore,  not  only  provided  with  special  laws 
for  their  government  and  protection,  but  the'  rules 
by  which  they  are  judged,  in  the  admiralty  courts, 
are  more  flexible  than  those  adopted  for  any  other 
class.  In  these  courts,  where  suits  by  them  for 
their  wages,  or  against  them  for  their  offences,  are 
cognizable,  they  have  usually  found  watchful  and 
firm  guardians,  suited  to  their  character  and  wants. 
Indeed,  they  have  been  termed  the  peculiar  favor- 
ites of  maritime  courts.  Their  thoughtlessness  and 
improvidence,  combined  as  it  is  with  much  of  merit 
and  of  gallantry,  is  forever  exposing  them,  either 
to  the  arts  of  the  designing  or  to  the  bitterness  of 
privation  and  suffering.  They  are  seldom  fully 
aware  of  their  own  rights  and  privileges,  and  too 
often  indifferent  to  their  true  value.  Hence  it  is 
in  the  admiralty  courts,  where  alone  equity  powers 
are  possessed  fully  adequate  to  their  wants,  that 
seamen  can  look  for  even-handed  justice  and  pro- 
tection. The  rules  and  the  precedents  of  the  com- 
mon law-courts,  though  well  adapted  to  the  char- 
acter and  wants  of  other  men,  are  scarcely  so  to 
them. 

The  character  and  wants  of  seamen  are  now 
every  day  becoming  more  fully  and  better  under- 
stood, and  their  rights  are  beginning  to  become  a 
topic  for  frequent  and  serious  remark.  It  is  to  be 


PROTECTION  OF  SEAMEN. 


147 


honed  that  this  spirit  of  inquiry  into  their  rights 
and  grievances,  will  not  only  continue,  but  be  pro- 
ductive of  much  good.  A great  object  has  been 
gained  when  you  have  put  any  class  upon  the  in- 
quiry as  to  what  their  rights  are.  There  is  but 
little  fear  but  that  when  once  ascertained  they 
will  uphold  and  defend  them. 

The  national  legislature  has  wisely  and  humane- 
ly seconded  this  watchful  guardianship  of  the 
rights  and  privileges  of  seamen  by  the  admiralty 
courts,  by  passing  numerous  and  salutary  laws 
calculated  to  protect  them,  not  only  from  the  cru- 
elty or  cupidity  of  the  master,  or  owners,  but  also 
from  their  own  improvidence  on  a home  shore,  and 
from  the  accumulated  sufferings  of  disease  and 
poverty  in  foreign  ports. 

OF  LAWS  FOR  THE  PROTECTION  OF  SEAMEN. 

Every  American  seaman  may,  upon  application 
to  the  collector  of  the  district  from  whence  he  de- 
parts, and  upon  producing  proof  of  his  citizenship, 
obtain  a letter  of  protection.  He  is  entitled  to  this 
certificate  by  application  as  above,  and  by  paying 
25  cents. 

It  is  the  duty  of  the  master  of  the  vessel,  whose 
crew,  or  any  of  them,  have  been  impressed  or  de- 
tained by  a foreign  power,  at  the  first  port  at  which 
he  arrives  after  such  impressment,  if  it  happen  up- 
on the  high  seas,  or,  it  it  occur  in  port,  then,  imme- 


148  RELIEF  OF  SEAMEN  IN  AMERICAN  PORTS. 

diately  upon  such  impressment  or  detention  taking 
place,  to  make  a protest  and  transmit  it  to  the  near- 
est American  minister  or  consul.  He  should  re- 
serve to  himself  a duplicate  copy  of  the  protest, 
and  immediately  upon  arriving  in  the  United 
States,  he  must  transmit  the  same  to  the  Secretary 
of  State.  In  case  the  protest  is  made  in  the  United 
States,  or  in  a foreign  country  where  no  American 
minister,  consul  or  agent  resides,  then  the  same 
must,  as  soon  thereafter  as  practicable,  be  sent  by 
mail  or  otherwise,  to  the  Secretary  of  State.* 

If  the  master  neglect  to  notify  as  above  in  case 
of  the  impressment  of  any  of  his  seamen,  he  is  lia- 
ble to  forfeit  and  pay  $100. 

OF  LAWS  FOR  THE  RELIEF  OF  SEAMEN  IN  AMERICAN 
PORTS. 

Masters  of  vessels  are  authorised  by  law  to  re- 
tain twenty  cents  per  month  out  of  the  wages  of 
the  seamen  in  their  employ,  for  hospital  money. f 
The  fund  thus  raised,  is  appropriated  to  the  es- 
tablishment and  maintenance  of  hospitals  for  sick 
and  disabled  seamen.  The  money  thus  retained 
by  the  master  is  paid  into  the  hands  of  the  several 
collectors,  and  by  them  quarterly  returns  must  be 
made  of  the  sums  thus  collected,  into  the  office  of 
the  Secretary  of  the  Treasury.  This  fund,  when 
thus  collected,  is  at  the  disposal  of  the  president  of 
the  United  States  for  the  purposes  above  expressed. 

* Act  23d  May,  1796,  sec.  4.  f Act  16th  July,  1798,  sec.  1. 


RELIEF  OF  SEAVEN  IN  FOREIGN  COUNRTIES.  149 


Directors  are  appointed  in  the  several  ports  of 
the  United  States,  where  the  president  thinks 
proper,  who  have  the  direction  of  the  expenditure 
of  the  fund  assigned  for  their  respective  ports. 

Where  it  can  with  convenience  be  done,  direc- 
tors of  the  Marine  Hospitals,  within  the  United 
States,  are  required  to  admit  into  their  respective 
hospitals  sick  foreign  seamen,  on  the  application 
of  the  master  of  any  foreign  vessel  to  which  such 
seamen  may  belong  : and  such  master  is  bound  for 
the  payment  of  the  hospital  expenses  thus  incurred. 
No  clearance  will  be  granted  him  until  such  pay- 
ment is  made. 

See  article  on  “ Marine  Hospitals ,”  also  on 
“ Medicine,  and  Medical  Advice  and  Attendance 

OF  LAWS  FOR  THE  RELIEF  OF  AMERICAN  SEAMEN  IN 
FOREIGN  COUNTRIES. 

When  a vessel  is  sold  in  a foreign  country,  and 
her  company  is  discharged  ; or  when  a mariner,  a 
citizen  of  the  United  States,  is,  with  his  own  con- 
sent, discharged  in  a foreign  country,  the  seaman 
so  discharged,  is  entitled  to  two  months  pay,  over 
and  above  the  wages  then  already  earned  on  board. 
This  pay  he  obtains  by  application  to  the  American 
consul  for  the  port  where  such  discharge  is  made.* 

American  seamen  in  foreign  ports,  who  are  sick, 
or  in  destitute  circumstances,  are  entitled  to  re- 

* Act  28th  Feb.  1803,  sec.  3. 

13* 


150  RELIEF  OF  SEAMEN  IN  FOREIGN  COUNTRIES. 

ceive,  upon  application  to  the  consular  agent  of 
their  government  for  the  port  where  they  may  hap- 
pen to  be,  suitable  food  and  assistance  ; and  they 
are  also  entitled  to  have  a passage  provided  for 
them  to  some  port  in  the  United  States.* 

Where  the  master  of  a vessel,  in  a foreign  port, 
where  no  American  consul  or  other  government 
agent  resides,  takes  a distressed  American  seaman 
on  board  and  returns  him  to  the  United  States,  the 
Comptroller  of  the  Treasury  has  power  to  award 
him  a suitable  and  equitable  compensation,  in  ad- 
dition to  the  compensation  now  fixed  by  law.f 
If  a seaman  is  discharged  abroad  without  his 
own  consent,  he  may  follow  the  vessel  and  recover 
wages  up  to  the  time  of  her  arrival  in  a home  port, 
and  also  the  expenses  of  his  own  return.  His  in- 
termediate earnings  may  be  deducted  from  the  ex- 
penses incurred,  but  not  from  the  wages  due.J 
The  whole  policy  of  the  laws  of  the  United 
States,  discourages  the  discharge  of  American  sea- 
men in  foreign  ports. $ 

A consul  has  no  authority  to  order  a seaman  to 
be  imprisoned  in  a foreign  port.  If  the  master  does 
it  on  his  order,  he  is  not  exempt  from  liability  if 
the  imprisonment  was  unjustifiable. 

For  right  of  seamen  to  medical  advice  and  at- 
tendance when  sick  or  disabled  in  a foreign  port, 

* Act,  28th  Feb.  1803,  sec.  4.  f Act.  1811. 

4 7 Amer.  Jurist,  37.  § 7 Amer.  Jurist,  37. 


MEDICAL  ADVICE  AND  ATTENDANCE. 


151 


see  article,  “ Medicine  and  Medical  Advice  and 
Attendance 

OF  MEDICINE,  AND  MEDICAL  ADVICE  AND  ATTENDANCE. 

By  the  maritime  law,  both  of  Europe  and  Amer- 
ica, the  expense  of  curing  a sick  seaman,  is  made  a 
charge  upon  the  ship  ; “ and  it  appears  to  me,” 
says  Mr.  Justice  Story,  “ so  consonant  with  human- 
ity, with  sound  policy,  and  with  national  interests, 
that  it  commends  itself  to  my  mind  quite  as  much 
by  its  intrinsic  equity,  as  by  the  sanction  of  its 
general  authority.  Seamen  are,  by  the  peculiarity 
of  their  lives,  liable  to  sudden  sickness,  from  change 
of  climate,  exposure  to  perils  and  exhausting  labor. 
They  are  generally  poor  and  friendless,  and  if  some 
provision  be  not  made  for  them  in  sickness  at  the 
expense  of  the  ship,  they  must  often,  in  foreign 
ports,  suffer  the  accumulated  evils  of  disease  and 
poverty,  and  sometimes  perish  for  the  want  of  suit- 
able nourishment.  Their  common  earnings,  in 
many  instances,  are  wholly  inadequate  to  provide 
for  the  expenses  of  sickness,  and  if  liable  to  be  so 
applied,  the  great  motives  for  good  behavior  might 
be  ordinarily  taken  away,  by  pledging  their  future, 
as  well  as  past  wages,  for  the  redemption  of  the 
debt.  On  the  other  hand,  if  these  expenses  are  a 
charge  upon  the  ship,  the  interest  of  the  owner  will 
be  immediately  connected  with  that  of  the  seaman. 
The  master  will  watch  over  their  health  with  vigil- 


152  MEDICAL  ADVICE  AND  ATTENDANCE. 


ance  and  fidelity.  He  will  take  the  best  methods, 
as  well  to  prevent  diseases  as  to  insure  a speedy 
recovery  from  them.  He  will  never  be  tempted  to 
abandon  the  sick  to  their  forlorn  fate  ; but  his  duty 
combining  with  that  of  the  owner,  will  lead  him 
to  succor  their  distress,  and  shed  a cheering  kind- 
ness over  the  anxious  hours  of  suffering  and  de- 
spondency.” 

The  master  and  mate,  as  well  as  the  seamen, 
are  entitled  to  medical  advice  and  attendance 
at  the  expense  of  the  ship.  If  they  are  put  on 
shore  from  sickness,  for  the  convenience  of  the 
ship,  their  expenses  for  medicine,  advice,  attend- 
ance and  board,  are  to  be  borne  by  the  ship  own- 
er.* 

Seamen  are  to  be  cured  at  the  expense  of  the 
ship,  of  any  sickness,  or  injury,  sustained  in  the 
ship’s  service. 

It  must  be  sustained  by  the  party  while  in  the 
ship’s  service,  and  he  is  not  to  receive  any  compen- 
sation or  allowance  for  the  effects  of  the  injury. f 

Where  a seaman,  in  a foreign  port,  is  taken  on 
shore  at  his  own  solicitation,  from  a vessel  properly 
provided  with  a medicine  chest , and  there  receives 
medical  advice  and  attendance,  the  expenses  there- 
of are  to  be  deducted  from  his  wages. J 

Livery  ship,  or  vessel,  of  the  burthen  of  seventy- 
five  tons  or  upwards,  navigated  by  six  or  more  per- 

* 2 Mason,  541.  Gilpin’s  It.  485. 

f Gilpin’s  it.  435. 


f Sumner’s  R.  195. 


PROVISIONS  AND  WATER.  153 

sons  in  the  whole,  and  bound  on  a voyage  without 
the  limits  of  the  United  States,  must  be  provided 
with  a chest  of  medicines,  put  up  by  some  apothe- 
cary of  known  reputation,  and  accompanied  by  di- 
rections for  administering  the  same ; and  such 
medicine  must  be  examined  by  the  same,  or  some 
other  apothecary,  once  at  least,  in  every  year,  and 
supplied  with  fresh  medicines  in  place  of  such  as 
have  been  used,  or  spoiled.  In  case  the  master 
fails  to  provide  such  medicine-chest,  and  to  keep  it 
fit  for  use,  he  must  provide  and  pay  for,  all  such 
advice,  medicine,  or  attendance  of  physicians  as 
any  of  the  crew  may,  in  case  of  sickness,  stand  in 
need  of,  at  every  port  or  plaee  where  the  vessel 
may  touch  or  trade  at  during  the  voyage,  without 
any  deduction  from  the  wages  of  any  such  sick 
seaman  or  mariner.* 

A stipulation  that  the  seaman  shall  pay  for  med- 
ical advice,  and  medicines,  without  any  condition 
that  there  shall  be  a suitable  medicine-chest,  &c., 
is  void,  as  contrary  to  the  act  of  Congress. f 

OF  PROVISIONS  AND  WATER. 

Everv  vessel,  bound  on  a foreign  voyage  across 
the  Atlantic,  must,  at  the  time  of  her  leaving  the 
last  port  whence  she  sails,  have  on  board,  well 
secured  under  deck,  at  least  sixty  gallons  of  water, 
one  hundred  pounds  of  salted  flesh  meat,  and  one 


* Act  2,  March,  1805. 


f 2 Mason,  541. 


154  WHEN  MARINERS  MAY  REFUSE  VOYAGE. 

hundred  pounds  of  wholesome  ship-bread  for  every 
person  on  board  such  vessel,  over  and  besides  such 
other  provisions,  stores,  and  live  stock,  as  may,  by 
the  master,  or  passengers,  be  put  on  board  ; and  in 
like  proportion  for  shorter  or  longer  voyages. 

In  case  the  crew  of  any  vessel,  not  so  provided, 
are  put  on  short  allowance  of  water,  flesh,  or  bread, 
during  the  voyage,  the  master  or  owner  of  such 
ship  or  vessel,  is  liable  to  pay  to  each  of  the  crew 
one  day’s  wages  beyond  the  wages  agreed  upon, 
for  every  day  they  are  so  put  on  short  allowance. 

Where  the  provisions  specified  in  the  act  of  Con- 
gress, to  be  put  on  board  the  vessel,  can  be  procur- 
ed, no  substitute  can  be  allowed  ; but  where  the 
specific  articles  cannot  be  obtained,  others  may  be 
substituted.  When  the  requisite  quantity  is  taken 
in,  the  master  is  the  sole  judge  of  their  expenditure. 
If  the  voyage  is  likely  to  be  uncommonly  procras- 
tinated, or,  if  provisions  are,  by  accident,  diminish- 
ed in  quantity,  he  may  justifiably  diminish  the 
usual  allowance.  There  is  not  the  shadow  of  rea- 
son to  complain,  where  other  provisions  are  substi- 
tuted for  enumerated  articles  damaged.* 

WHEN  MARINERS  MAY  REFUSE  TO  PROCEED  ON  THE 
VOYAGE. 

That  the  lives  and  comfort  of  mariners  may  not 
be  exposed  unnecessarily  by  the  carelessness  or  cu- 


1 Admiralty  Decision,  219. 


WHEN  MARINERS  MAY  REFUSE  VOYAGE.  155 


pidity  of  their  employers,  by  placing  them  on  board 
of  vessels  unseaworthy,  or,  unprovided  with  suitable 
stores,  it  is  provided  in  certain  cases  that  the  crew 
may  compel  the  master  to  put  into  port  for  repairs, 
or  to  obtain  farther  supplies. 

By  the  act  of  the  20th  July,  1790,  it  is  provided 
that,  if  the  mate  or  first  officer  under  the  master,  and 
a majority  of  the  crew  of  any  vessel,  bound  to  a 
foreign  port,  shall,  after  the  voyage  has  begun,  (and 
before  the  vessel  has  left  the  land,)  discover  that 
she  is  too  leaky,  or  is  otherwise  unfit  in  her  crew, 
body,  tackle,  apparel,  furniture,  provisions,  or  stores, 
to  proceed  on  her  intended  voyage,  they  may  re- 
quire of  the  master  that  the  same  be  inquired 
into.  The  master,  upon  such  request,  must  forth- 
with proceed  to,  or  stop  at  the  nearest  port  or  place 
where  such  inquiry  can  be  made,  and  must  there 
apply  to  the  judge  of  the  district  court,  if  he  reside 
there,  or  to  a justice  of  the  peace,  taking  two  of 
the  seamen  who  complained  with  him,  and  upon 
such  application,  the  judge  or  justice  must  issue 
his  precept  to  three  disinterested  men  skilled  in 
such  affairs,  to  repair  on  board  and  examine  her  in 
respect  to  the  deficiences  complained  of,  and  to  make 
report  to  him,  in  writing,  whether  in  any,  or  what 
respect  she  is  unfit  to  proceed  on  her  voyage,  and 
what  addition  of  men,  provisions  or  stores,  or  what 
repairs  are  needed  to  render  her  fit  to  proceed  on  the 
voyage.  Upon  the  report  thus  made,  the  judge 
must  determine  and  endorse  on  the  report  his  jndg. 


156  WHEN  MARINERS  MAT  REFUSE  VOYAGE. 

ment,  whether  the  vessel  is  fit  to  proceed  on  the  in- 
tended voyage  or  not  ; and  if  not,  also  whether  she 
can  be  refitted  where  she  then  is,  or  must  return  to 
the  port  from  which  she  originally  departed.  This 
judgment  must  be  strictly  followed  by  both  mas- 
ter and  crew.  The  master  must  in  the  first  in- 
stance pay  all  the  costs  and  charges  of  such  view, 
report  and  judgment. 

If  the  complaint  of  the  crew  appear  upon  such 
judgment  to  be  without  foundation,  then  the  mas- 
ter may  deduct  the  amount  of  such  costs,  and  also 
reasonable  damages  for  such  detention  (to  be  ascer- 
tained by  such  judge  or  justice,  from  the  wages 
growing  due  to  such  complaining  seamen. 

If,  after  such  judgment,  such  vessel  is  fit  to  pro- 
ceed to  sea;  or  after  procuring  such  provisions, 
stores,  men,  or  repairs,  as  may  be  directed,  the  sea- 
men, or  either  of  them,  refuse  to  proceed  on  the 
voyage,  any  justice  of  the  peace  may  commit  such 
seaman  or  seamen  to  the  common  jail  of  his  coun- 
ty, there  to  remain  without  bail  until  he  or  they 
shall  have  paid  double  the  sum  advanced  to  him  at 
the  time  of  subscribing  the  contract  for  the  voyage, 
together  with  such  reasonable  costs  as  may  be  al- 
lowed by  the  justice,  and  the  surety  of  such  sea- 
man (in  case  he  may  have  given  any)  must  remain 
liable  for  such  payment. 

No  seaman  thus  committed  can  be  discharged 
upon  any  writ  of  habeas  corpus,  or  otherwise,  until 
such  sum  be  paid  by  him,  or  his  surety. 


seamen’s  wages. 


157 


When  seamen  have  shipped  on  board  of  any 
vessel  under  a particular  master,  and  afterwards  an- 
other master  is  substituted  in  his  place,  such  sea- 
men have  no  right  to  leave  the  ship  and  refuse  to 
perform  the  voyage  for  that  reason  alone.  But  if 
the  master  so  substituted  is  grossly  incompetent  to 
fulfil  the  duties  of  his  station,  from  want  of  skill, 
or  bad  habits,  or  profligate  and  cruel  behavior,  the 
seamen  may  be  justified  in  refusing  to  do  duty,  or 
to  remain  by  the  ship. 

of  seamen’s  wages. 

To  prevent  all  embarrassment  in  ascertaining 
the  exact  condition  on  which  seamen  contracted  for 
the  voyage,  it  was  early  enacted  by  statute,  that  a 
contract  in  writing,  or  in  print,  should  be  made  with 
every  seaman  on  board  of  any  vessel  of  the  burthen 
of  fifty  tons  or  upwards,  and  bound  to  any  other 
than  a port  in  the  same,  or  an  adjoining  state.  In 
this  contract  must  be  declared  the  voyage,  and  also 
the  term  of  time  for  which  each  seaman  shipped, 
as  well  as  the  amount  of  compensation.* 

If  the  master  carries  out  any  seaman  without 
such  written,  or  printed  agreement,  he  is  bound  to 
pay  to  such  seaman  the  highest  wages  which  was 
given  for  a similar  voyage,  within  the  three  months 
previous  to  such  shipping  ; and  also  forfeit  for  every 
seaman  thus  carried  out,  the  sum  of  $20. 

* Act  20th  July,  1790,  sec.  1. 

14 


seamen’s  wages. 


Seamen  who  have  not  signed  the  shipping  arti- 
cles, are  not  bound  by  the  regulations,  nor  subject 
to  the  penalties  provided  in  an  act  passed  in  1790, 
chap.  7,  sec.  56,  for  the  government  and  regulation 
of  seamen  in  the  merchant’s  service.* 

Every  seaman  may  demand  from  the  master  of 
the  vessel  to  which  he  belongs,  one  third  part  of 
the  wages  which  are  due  to  him,  at  every  port  at 
which  the  vessel  unlades  a part  of  her  cargo,  unless 
the  contrary  be  expressly  stipulated  in  the  con- 
tract.f 

As  soon  as  the  voyage  is  ended,  and  the  cargo  or 
ballast  is  fully  discharged  at  the  last  port  of  deliv- 
ery, he  is  entitled  to  the  wages  then  due  him  ac- 
cording to  his  contract ; and  if  such  wages  are  not 
paid  within  ten  days  after  the  discharge  of  the  car- 
go as  aforesaid,  the  seaman  may  commence  a pro- 
cess against  the  master  to  compel  payment. 

If  the  vessel  be  about  to  proceed  to  sea  before 
the  ten  days  have  expired,  the  mariner  may  proceed 
against  the  vessel  immediately. 

Seamen  have  a threefold  remedy  for  the  obtain- 
ment  of  their  wages — to  wit  : against  the  master, 
the  owner,  and  the  ship. 

They  are  favored  in  another  respect,  inasmuch 
as  they  are  privileged  by  law,  to  bring  their  suit 
jointly,  the  whole  crew  joining  in  one  action,  and 
thus  preventing  the  accumulation  of  costs  which 
would  ensue  from  the  suits  being  brought  severally. 

4 Act  20th  July,  1790,  sec.  2.  f Ibid,  sec.  6. 


seamen’s  wages. 


159 


After  the  ten  days  have  expired,  if  the  master  re- 
fuse to  pay  his  seamen,  their  proper  method  to  ob- 
tain payment,  is,  to  apply  to  a judge  of  the  district 
where  the  vessel  lays,  or  in  case  no  such  judge  re- 
sides within  three  miles,  then  to  a justice  of  the 
peace,  with  a statement  of  their  several  claims  ; 
whose  duty  it  is  immediately  thereafter  to  issue  a 
summons  to  the  master  thus  complained  against,  to 
appear  and  show  cause  why  process  should  not  is- 
sue against  the  vessel,  her  furniture,  tackle  and  ap- 
parel, according  to  the  usual  course  of  admiralty 
courts. 

II,  when  so  summoned,  the  master  neglect  to  ap- 
pear, or  appearing,  fail  to  satisfy  the  judge  or  jus- 
tice, that  the  wages  thus  claimed  are  not  due,  or 
that  the  same  have  been  paid,  satisfied  or  forfeited, 
it  is  the  duty  of  the  judge  or  justice,  if  the  same 
are  not  forthwith  paid  or  satisfied,  to  certify  to 
the  clerk  of  the  court  of  the  district,  that  there  is 
sufficient  cause  of  complaint  whereon  to  found  ad- 
miralty process  ; and  thereupon  the  clerk  of  the  dis- 
trict court  Avill  issue  process  against  the  vessel,  &c. 

If  the  master,  upon  the  trial,  or  upon  any  hear- 
ing touching  their  wages  or  conduct,  refuse,  upon 
application,  to  produce  the  log  book,  the  seamen  are 
permitted  to  state  what  the  same  contains,  and  the 
master  cannot  disapprove  what  the  seamen  thus 
state,  otherwise  than  by  producing  the  log  book. 

As  a seaman  is  exposed  to  the  hazard  of  losing 
the  reward  of  his  faithful  services  during  a consid- 


160 


seamen’s  wages. 


erable  period,  in  certain  cases,  so  on  the  other  hand 
the  law  gives  him  his  whole  wages,  even  when  he 
has  been  unable  to  render  his  services,  if  his  inabil- 
ity has  proceeded  from  any  hurl  received  in  the 
performance  of  his  duty,  or  from  natural  sickness 
happening  to  him  in  the  course  of  the  voyage.* 

If,  in  consequence  of  their  sickness,  they  are  ob- 
liged to  be  left  at  a foreign  port,  they  are  still  enti- 
tled to  their  wages  for  the  full  voyage. f 

If,  by  threats,  the  crew  induce  the  master,  while 
on  the  voyage,  to  promise  them  higher  wages  than 
those  for  which  they  contracted,  the  promise  will 
be  held  to  be  void.J  * 

If  the  master,  in  violation  of  his  contract,  dis- 
charge a seaman  from  the  ship  during  a voyage,  the 
seaman  will  be  entitled  to  his  full  wages  up  to  the 
prosperous  termination  of  the  voyage,  deducting,  if 
the  case  require  it,  such  sum  as  he  may  in  the  mean 
time  have  earned  in  another  vessel. $ 

When  seamen  are  discharged  by  their  own  con- 
sent abroad,  or  the  ship  is  sold  abroad,  they  are  of 
course  entitled  to  their  wages  up  to  that  time  ; and 
the  act  of  Congress  of  28th  of  Feb.  1803,  ch.  62) 
provides  thht  three  months  additional  pay  shall  be 
allowed,  two  thirds  of  which  are  to  be  given  by 
the  consul  of  the  United  States  to  the  seamen,  and 
the  other  third  is  to  be  retained  by  the  consul  as  a 
fund  to  aid  sick  and  distressed  seamen. 


# Abbott,  441. 

X 14  Johns.  260. 


f 2 H.  Bl.  606. 

§ 3 Johns.  R-  518. 


FORFEITURE  OF  SEAMEN’S  WAGES.  161 

In  case  of  a seaman’s  dying  in  the  course  of  the 
voyage,  his  representatives  are  entitled  to  his  wa- 
ges up  to  the  time  of  his  death.* 

A father  is  entitled  to  the  services  of  his  minor 
children.  He  may,  therefore,  recover  in  the  admi- 
ralty for  wages  earned  by  such  children  by  mari- 
time services.! 

The  written  agreement,  or  shipping  articles,  en- 
tered into  at  his  departure,  is  the  only  legal  evi- 
dence of  the  contract,  and  a mariner  can  recover 
no  more  than  is  stipulated  in  these  articles. 

OF  THE  LIABILITY  OF  SEAMEN  TO  FORFEIT*  THEIR 
WAGES. 

One  of  the  means  by  which  seamen  are  sought 
to  be  bound  to  the  ship,  and  made  to  feel  the  suc- 
cess of  the  voyage  to  be  identical  with  their  own, 
is  the  liability  which  the  law  acknowledges,  of 
their  forfeiting  their  wages  to  the  owners  for  their 
misconduct ; or  of  losing  them,  by  the  loss  of  the 
ship.  That  these  regula  ions  are  founded  in  good 
policy,  no  one  who  considers  the  character  of  mar- 
itime engagements  can  seriously  question.  By  mak- 
ing the  payment  of  their  wages  dependent  upon 
their  conduct,  a steady  and  healthful  influence  is 
constantly  operating  upon  them,  and  that,  too,  at 
times,  and  in  places,  where  no  other  motives  would 


* 12  Mass.  R.  576. 

14* 


f 4 Mason,  380. 


162 


FORFEITURE  OF  SEAMEN'S  WAGES. 


be  likely  to  be  regarded ; and  the  making  the  loss 
of  the  ship  the  certain  loss  of  their  wages,  secures 
more  effectually  than  could  any  other  thing,  the 
united  and  active  assistance  of  the  crew  to  save  the 
ship  in  time  of  peril,  when  otherwise  they  might 
be  inclined  to  shrink  from  duty.  But  while  the 
law  visits  upon  seamen  the  forfeiture  of  their  wages 
for  disobedience  and  mutiny,  it  is  only  those  offen- 
ces which  are  “ gross,  and  obstinate,  and  persisted 
in  without  repentance  and  amends,”  that  are  pun- 
ished thus  severely  ; while  lighter  faults  are  treated 
with  an  indulgent  lenity,  allowing  compensation 
for  any  losses  and  expenses  caused  by  them ; pass- 
ing over  slight  errors,  unaccompanied  with  mis- 
chief, without  notice,  and  correcting  habitual  neg- 
lect, or  incompetent  performance  of  duty,  when  it 
amounts  only  to  minor  faults,  by  a correspondent 
diminution  of  wages. 

If  a seaman  belonging  to  a vessel,  absent  him- 
self from  on  board  without  leave  of  the  master,  or 
officer  commanding  on  board,  for  more  than  forty- 
eight  hours , at  one  time,  he  forfeits  all  the  wages 
then  due  him. 

If  he  thus  absent  himself  for  a less  time  than 
forty-eight  hours,  he  forfeits  three  days  for  every 
day  he  absents  himself. 

In  case  he  deserts  from  the  ship  for  more  than 
forty-eight  hours,  the  mariner  not  only  forfeits  his 
wages,  but  also  his  goods  and  chattels  on  board,  or 
in  store  where  he  may  have  deposited  them  on  de- 


FORFEITURE  OF  SEAMEN’S  WAGES. 


163 


sertion ; and  is  liable  to  pay  all  damages  sustained 
by  the  owners,  by  reason  of  their  being  obliged  to 
hire  other  mariners  in  his  place.* 

The  officer  having  command  of  the  log  book 
must  make  an  entry  in  it  of  the  name  of  the  ab- 
sentee, with  the  time  of  his  desertion,  on  the  day 
it  takes  place.  Without  such  entry,  the  seaman 
can  recover  for  his  wages. 

It  is  incumbent  upon  the  master,  or  commander, 
to  produce  the  contract,  and  log  book,  if  required 
by  the  mariner  for  the  ascertainment  of  any  matter 
in  dispute ; and  if  he  refuse  so  to  do,  the  mariner 
will  be  permitted  to  say  what  is  the  contents  of 
such  contract,  or  log  book,  and  the  master  will  not 
be  allowed  to  contradict  him. 

It  is  provided  by  law,  that  at  the  foot  of  every 
shipping  paper  there  must  be  made  a memorandum 
of  the  day  and  hour  on  which  the  seamen  must 
render  themselves  on  board.  If  any  seaman,  after 
subscribing  such  shipping  paper,  and  receiving  his 
month’s  advance,  neglect  to  render  himself  on  board 
to  begin  the  voyage  on  the  day  and  hour  specified, 
he  forfeits  for  every  hour  he  so  neglects  to  render 
himself,  one  day's  pay  to  be  deducted  from  his 
wages. 

If  he  wholly  neglect  to  render  himself  on  board, 
or,  after  rendering  himself  on  board,  desert,  so  that 
the  vessel  proceeds  to  sea  without  him,  he  forfeits, 


* Act  20th  July;  1790,  sec.  5. 


164  FORFEITURE  OF  SEAMEN^  WAGES. 

and  is  liable  to  pay  to  the  master  or  owner,  a sum 
equal  to  that  paid  him  in  advance,  in  addition  to 
the  sum  so  advanced.* 

Seamen  forfeit  their  wages  for  gross  offences,  but 
not  for  slight  faults,  either  of  neglect  or  disobedi- 
ence. There  must  be  either  an  habitual  neglect 
or  disobedience,  or  a single  act  of  a heinous  and 
aggravated  nature. f 

Repentance  and  tender  of  amends,  reinstates  the 
offender’s  claim  for  wages. J 

The  master  has  power  to  remit  the  forfeiture  of 
the  wages  of  any  seaman  under  his  command,  and 
such  pardon  by  him  cannot  be  questioned  by  the 
owners  afterwards.  <§> 

Wages  forfeited  for  an  offence  are  only  such  as 
are  earned  antecedently , and  not  subseqtiefitly  to 
the  offence.  || 

Neglect  of  duty  on  the  part  of  seamen,  or  diso- 
bedience of  orders,  habitual  drunkenness,  or  any 
cause  which  will  justify  a master  in  discharging  a 
seaman  during  a voyage,  will  also  deprive  him  of 
his  wages.  But  the  neglect  of  duty  and  disobedi- 
ence of  orders,  it  seems,  must  be  continued  and  ob- 
stinate, to  subject  the  offender  to  so  severe  a pen- 
alty.H 

Desertion  of  one  of  the  crew  during  the  voyage 
is,  by  the  maritime  law,  a forfeiture  of  all  wages 

* Act  20th  July,  1790,  sec.  2.  § 4 Mason,  84. 

f 4 Mason,  84.  H Ibid. 

$ Ibid.  If  Ibid.  541. 


FORFEITURE  OF  SEAMEN’S  WAGES.  165 

antecedently  due.  But  a desertion,  to  work  this 
effect,  must  be  not  only  an  absence  without  leave, 
or  in  disobedience  of  orders,  but  a going  away  with 
the  intention  to  abandon  the  ship  and  the  service. 

If,  after  desertion,  a seaman  offer  to  return  to 
duty  in  a reasonable  time,  and  offer  amends,  and 
repent  of  the  offence,  the  master  is  bound  to  re- 
ceive him  back,  unless  his  previous  misconduct 
would  justify  a discharge.* 

The  contract  of  seamen  is  not  dissolved  by  ship- 
wreck ; but  they  are  bound  to  labor  to  preserve  the 
wreck  of  ship  and  cargo  ; and  if  they  leave  the 
ship  without  endeavoring  to  save  them,  they  desert 
their  duty  and  may  forfeit  wages  antecedently  due. 

Desertion  to  bring  after  it  the  forfeiture  of  wages, 
either  by  the  maritime  law  or  by  the  statute,  must 
be  during  the  voyage,  and  before  it  is  ended. 

The  due  entry  in  the  log  book  is  indispensable 
to  inflict  the  statute  forfeiture.  If  not  made  on  the 
very  day  of  the  absence  there  can  be  no  forfeiture 
inflicted.f 

Both  officers  and  seamen  are  bound  to  remain  by 
the  ship  and  unlade  the  cargo.  If  they  do  not, 
they  are  liable  for  damages,  and  a compensation  to 
the  owner. 

If  a person  be  substituted  as  master  to  take  the 
place  of  the  commander  under  whom  the  seamen 
shipped,  who  is  grossly  incompetent  to  fulfil  the 


* 4 Mason,  84. 


f 1 Sumner,  373. 


166 


FORFEITURE  OF  SEAMEN’S  WAGES. 


duties  of  his  station  from  want  of  skill,  or  bad  hab- 
its, or  profligate  and  cruel  behavior,  the  seamen 
may  be  justified  in  refusing  to  do  duty,  or  to  re- 
main by  the  ship. 

Where  a vessel  is  detained  in  port  by  the  wrong- 
ful absence  of  a seaman,  a deduction  from  his  wa- 
ges may  be  made  to  the  amount  of  loss  actually 
sustained. 

Where  a vessel  arrives  at  the  last  port  of  delive- 
ry, and  is  moored  at  the  wharf,  if  a seaman  leaves 
her  before  the  discharge  of  the  cargo,  a deduction 
from  his  wages  is  allowed,  but  not  a forfeiture  of 
the  whole.  So,  also,  when  the  vessel  is  detained 
by  his  refusal  to  work. 

A seaman  does  not  forfeit  his  wages  by  refusing 
to  proceed  on  a voyage  not  designated  in  the  ship- 
ping articles. 

The  .contract  of  the  master  with  a seaman  is  for 
his  services  until  the  cargo  is  discharged  ; and  if 
be  leaves  the  ship  before  that  time,  he  forfeits  his 
wages.* 

The  time  allowed  by  law  for  unlading  vessels  of 
over  300  tons  burthen  is  20  days ; and  all  vessels 
of  less  burthen,  10  days.  -It  is  probable  no  seaman 
would  be  required  to  remain  longer  by  the  ship, 
for  her  unlading,  than  the  time  allowed  by  law  for 
the  unlading  of  the  vessel. 


* 13  Johns.  R.  390. 


seamen’s  liability  to  lose  wages. 


167 


of  seamen’s  liability  to  lose  their  wages. 

It  has  ever  been  the  policy  of  all  maritime  na- 
tions to  identify  the  interests  of  the  seamen  with 
the  prosperity  of  the  voyage.  To  make  the  pay- 
ment of  their  wages  to  depend  on  its  successful 
termination.  From  the  nature  of  the  employment 
they  must,  necessarily,  often  be  engaged  in  very 
perilous  services.  Perhaps,  at  such  times,  no  other 
inducements  would  operate  so  strongly  towards 
making  them  do  their  whole  duty,  as  the  fact,  that 
on  the  issue  depended  their  title  to  their  past  earn- 
ings. So  important  has  this  principle  been  con- 
sidered in  the  highest  maritime  courts,  that  sea- 
men’s wages  have  been  judicially  settled  not  to  be 
legal  subjects  of  insurance.  Any  insurance  upon 
their  wages  is  considered  void  in  law,  as  contrary 
to  its  policy,  and  as  tending  to  subvert  the  very 
wholesome  rule,  that  freight  is  the  mother  of 
wages. 

The  seamen  lose  their  wages  when  the  vessel 
earns  no  freight.  This  may  happen  by  her  being 
totally  lost  or  captured.*  Freight  is  said  to  be  the 
mother  of  wages ; but  if  the  ship  is  lost  by  the 
fault  or  fraud  of  the  master  or  owner,  the  seamen 
are  entitled  to  their  wages. f 

Where  the  ship  is  disabled,  and  she  puts  into  an 
intermediate  port,  and  the  cargo  is  there  accepted, 
* Abbott,  p.  457,  notes. 


t 3 Johns.  R.  518. 


168 


SEAMEN'S  LIABILITY  TO  LOSE  WAGES. 


and  the  vessel  earns  a portion  of  her  freight,  then 
the  seamen  are  entitled  to  a like  proportion  of  their 
wages.* 

In  case  of  capture,  if  the  seamen  stay  by  the 
ship  at  the  request  of  the  master,  and  she  be  re- 
leased, they  recover  their  wages  for  the  whole  voy- 
age ; but  if  the  ship  be  condemned,  they  lose  their 
wages.  While  they  stay  by  the  ship,  however, 
waiting,  at  the  request  of  the  master,  for  her  release 
or  condemnation,  they  are  entitled  to  their  subsist- 
ence.! 

But  if  a loss  by  capture,  or  by  being  run  down, 
takes  place,  and  the  owner  recovers  of  the  insurers, 
or  of  the  vessel  running  her  dov^n,  still  the  seamen 
cannot  recover  for  their  wages.J 

Where  a ship,  upon  a double  voyage,  earns  one 
freight,  or  more,  but  is  lost  while  earning  the 
other;  in  the  adjustment  with  the  crew,  they  are 
to  be  paid  for  their  time  up  to  the  last  port  where 
freight  was  earned,  and  for  half  the  time  while  the 
ship  lay  in  said  port.$ 

Or,  if  the  ship  go  in  ballast  to  another  port  after 
a cargo,  and  after  taking  in  a cargo  and  proceeding 
on  her  voyage,  be  shipwrecked,  the  seamen  are  en- 
titled to  wages  up  to  the  arrival,  and  half  the  time 
the  ship  lay  at  the  port  of  lading.  || 

When  a vessel  is  captured,  the  master  has  no 
longer  any  control  over  the  seamen.  The  relation 

* 2 Sumner,  443.  f Ibid.  f Abbott,  p.  457,  notes. 

§ 1 Peter’s  Cir.  Rep.  182.  ||  3 Greenleaf  s R.  1. 


DUTY  OF  MARINERS  IN  CASE  OF  DISASTER.  169 


between  the  master  and  crew,  then  immediately 
ceases. 

If  a seaman  die  during  the  voyage,  his  represent- 
atives may  recover  the  amount  of  his  wages  up  to 
the  time  of  his  death.  So,  if  a seaman  leave  the 
ship  without  any  fault  of  his  own,  he  may  recover 
his  wages.* 

Where  the  crew  of  a ship-wrecked  vessel  rescue 
a portion  of  the  wrecked  property  from  danger, 
they  have  a valid  lien  upon  the  goods  saved  for  an 
equitable  compensation  in  the  nature  of  salvage, 
yet  they  have  no  right  of  action  on  their  contract 
for  wages. | 

OF  THE  DUTY  OF  THE  MARINERS  IN  CASE  OF  DIS- 
ASTER. 

It  is  a well  established  rule  of  maritime  law, 
that  freight  is  the  mother  of  wages ; and  therefore 
if  the  ship  be  wrecked  on  her  passage,  and  earn  no 
freight,  the  seamen  lose  their  wages.  Hence  it  has 
sometimes  been  urged,  that  immediately  on  the 
wreck  of  the  vessel,  the  contract  of  the  seamen  is 
dissolved,  and  they  are  no  further  bound  to  labor 
for  the  preservation  of  her,  or  the  property  on 
board.  But,  “ it  is  more  consonant  to  reason,  to  jus- 
tice, and  to  the  nature  of  the  contract,  to  hold,  that, 
in  all  cases  of  disaster,  the  seamen  are  bound  to  re- 
main by,  and  preserve  the  ship  and  cargo  as  far  as 

* 2 Mass.  E.  39.  f 2 Mason,  319. 

15 


170  DUTY  OF  MARINERS  IN  CASE  OF  DISASTER. 

they  can  ; and  to  punish  their  neglect  by  a forfeit- 
ure of  any  wages  which  have  been  previously 
earned  in  the  voyage.”* 

In  case,  therefore,  of  the  stranding  or  wreck  of 
the  vessel,  the  master  has  a right  to  command  the 
services  of  the  mariners  to  assist  in  saving  the 
wrecked  property.  Until  the  master  has  abandoned 
the  hope  of  saving  the  vessel  and  of  earning  freight  ; 
and  while  he  commands  their  services  for  the  pur- 
pose of  rescuing  her  from  her  peril , and  putting 
her  in  a position  to  resume  her  voyage , the  mari- 
ners are  attached  to  the  vessel  under  their  contract, 
and  bound  to  obey  the  master,  as  such.  For  this 
service,  (unless  their  efforts  are  successful,  and  a 
pro.  rata , or  full  freight  is  subsequently  earned,)  no 
wages  is  due  them  either  as  salvors  or  as  laborers 
by  the  day. 

But  when  the  disaster  is  such  that  the  master 
abandons  all  hope  of  rescuing  the  ship,  and  of  earn- 
ing freight,  then  their  claim  for  wages  is  gone  ; but 
if,  by  their  exertions,  any  portion  of  the  property  is 
saved,  the  seamen  are  entitled  to  their  wages  out  of 
the  same,  as  far  as  it  goes,  in  the  nature  of  a sal- 
vage, for  rescuing  the  property. 

The  popular  idea  among  seamen  that  the  mo- 
ment a vessel  is  stranded,  they  are  released  from 
the  obligation  to  serve  as  mariners,  and  that  for  any 
thing  done  towards  getting  the  ship  afloat,  they  are 
entitled  to  per  diem  pay  like  strangers  who  may 
* 2 Mason,  337. 


DUTY  OF  MARINERS  IN  CASE  OF  DISASTER.  171 


come  to  their  aid,  seems  hardly  reasonable,  since 
the  effort  is  an  experiment,  which,  if  successful,  is 
to  benefit  them  in  degree  with  the  owners. 

The  claim  of  the  seaman  is  not  under  his  con- 
tract for  wages  out  of  the  freight ; but  in  a new 
character,  as  a salvor , he  regains  a rightful  claim  to 
wages  restored  by  his  exertions  in  rescuing  the  ar- 
ticles saved,  whether  parts  of  the  ship  or  cargo, 
from  the  perils  or  loss  to  which  the  wreck  had  ex- 
posed them.* 

The  amount  of  salvage,  in  such  cases,  usually 
decreed  to  the  seamen  who  have  acted  as  salvors 
of  the  property,  is  the  amount  of  their  wages  up  to 
the  time  of  their  discharge.  Where  their  conduct 
has  been  very  meritorious,  or  where  they  have  ex- 
posed themselves  to  extraordinary  peril  in  their  ef- 
forts to  save  either  life  or  property,  a greater 
amount  is  sometimes  decreed,  but  seldom  or  never 
a less  sum,  where  the  amount  of  the  property  sav- 
ed, is  sufficient  to  cover  such  wages.f 

If  the  property  saved  has  been  underwritten  up- 
on, and  is  abandoned  to  the  underwriters,  they 
must  pay  this  salvage  if  the  property  comes  to 
their  hands.  But  the  seamen  have  a valid  lieu  up- 
on the  property  saved  for  this  salvage,  if  they 
choose  to  rely  upon  it. J 

In  case  of  the  stranding  or  wreck  of  the  vessel, 
and  the  master  employs  the  seamen,  or  any  of 
them,  to  assist  in  watching  and  protecting  the  ves- 

* 1 Peters,  48.  f 2 Mason,  338.  t 3 Mass.  R.  563. 


172 


STATE  LAWS  RELATING  TO  SEAMEN. 


sel,  or  goods,  he  may,  if  he  afterwards  sells  such 
vessel  or  goods,  under  his  authority  as  master,  pay 
such  seamen  a reasonable  compensation  out  of  the 
fund  so  obtained. 

Under  the  form  of  policy  made  use  of  by  the 
Boston  offices,  it  is  provided,  that,  “ in  case  of  a to- 
tal loss  of  a vessel  with  salvage,  the  amount  allowed 
out  of  the  salvage  to  the  officers  and  crew,  for  wages 
earned,  or  services  rendered  previously  to  the  loss, 
shall  be  considered  as  so  much  of  the  salvage  ap- 
plied to  the  use  of  the  ship  owners,  even  although 
the  same  should  be  allowed  or  paid  under  the  name 
of  salvage,  and  not  as  wages,  and  shall  accordingly 
be  deducted  in  adjusting  the  loss.” 

OF  STATE  LAWS  RELATING  TO  SEAMEN. 

In  Delaware,  when  engaged  on  board  of  a vessel, 
no  mariner  can  be  arrested  for  a debt  contracted 
above  ten  shillings  in  amount. 

In  Virginia,  foreign  seamen,  parties  to  the  ship- 
ping list,  who  absent  themselves  without  leave 
from  the  vessel  (whether  American  or  foreign)  may 
be  carried  before  a justice  of  the  peace,  by  a war- 
rant, and  committed  to  jail  until  the  vessel  is  ready 
to  sail,  and  then  delivered  to  the  master. 

Apprentices,  regularly  bound  to  the  master  or 
owner  for  a term  of  years,  may  be  dealt  with  in  the 
same  manner.  If,  however,  the  seaman  or  appren- 
tice prove,  before  the  justice,  that  he  has  been  cru- 


' STATE  LAWS  RELATING  TO  SEAMEN.  173 


elly  or  improperly  treated  by  the  master,  or  that  he 
has  good  reason  to  apprehend  personal  danger  from 
the  master,  should  he  be  compelled  to  remain  on 
board,  the  justice  may  discharge  him  from  confine- 
ment. 

If  masters  discharge  or  land  any  sick  or  disabled 
seaman  without  providing  for  his  maintenance 
and  cure,  they  forfeit  $60  ; and  if  they  land  any 
passenger  without  the  means  of  procuring  his 
maintenance  for  one  month,  they  forfeit  $50. 

Tavern  keepers  selling  drink  on  credit  to  a 
sailor  in  actual  employ  of  a vessel,  lose  the  debt, 
and  forfeit  $2  to  the  master  of  the  vessel.  The 
same  penalty  is  incurred  by  harboring  or  entertain- 
ing a sailor  in  actual  pay,  without  the  consent  of 
the  master. 

In  Georgia,  persons  giving  credit  to  seamen  for 
more  than  five  shillings,  lose  the  debt ; and  if  a 
person,  without  leave  of  the  master,  harbors  a 
sailor  who  has  signed  the  shipping  articles,  he  for- 
feits 40  shillings  for  every  twenty-four  hours  he 
harbors  him. 

Persons  selling  a seaman  spiritous  liquor  to  the 
amount,  of  more  than  one  shilling  and  six  pence  per 
day,  or  suffering  a sailor  to  drink  in  their  houses 
after  nine  in  the  evening,  forfeit  $5. 

In  Alabama,  persons  secreting  deserters  from  any 
merchant  vessel  are  liable  to  a penalty  of  $10  for 
every  day  they  continue  so  to  harbor  such  seamen. 
Masters  employing  seamen  belonging  to,  or  pre- 
15*  " 


174  EMBEZZLEMENT  BY  THE  SHIP’S  CREW. 

tending  to  be  discharged  from  another  vessel  in 
that  state,  must  obtain  a certificate  of  their  dis- 
charge, under  penalty  of  $50.  A seaman  absent- 
ing himself  from  his  vessel  without  leave,  is  liable 
to  be  committed  to  the  house  of  correction  until 
the  vessel  sails. 

In  Louisiana,  captains  of  vessels  arriving  at  New 
Orleans,  are  required  to  give  to  all  sailors  discharg- 
ed from  their  vessels,  a certificate  of  discharge.  If 
a sailor  desert,  the  master  must,  within  twelve 
hours  after,  affix  a notice  of  the  desertion  in  the 
mayor’s  office,  with  the  name  of  the  vessel  and 
deserter,  and  a description  of  the  latter,  signed  by 
the  master.  Masters  employing  seamen  without  a 
certificate  of  discharge,  are  liable  to  a fine  of  $50 ; 
and  if  a sailor  applies  to  enter  without  such  certifi- 
cate the  master  must  notify  the  other  masters  in 
port  who  have  given  such  notice.  If  the  master 
refuse  to  give  such  discharge,  the  sailor,  if  entitled 
to  it,  can  compel  him  to  do  so  before  the  parish 
court. 

Any  keeper  of  a public,  or  boarding,  house,  har- 
boring or  secreting  a deserter  from  a merchant  ves- 
sel, is  liable  to  a fine  of  $100,  and  to  imprisonment 
of  thirty  days,  at  the  discretion  of  the  court. 

OF  EMBEZZLEMENT  BY  THE  SHIP’S  CREW. 

Where  an  embezzlement  has  arisen  from  the 
fault,  fraud,  connivance,  or  negligence  of  the  crew, 
they  are  bound  to  contribute  to  it  in  proportion  to 


EMBEZZLEMENT  BY  THE  SHIP’S  CREW.  175 


their  wages  ; where  the  embezzlement  is  fixed  on 
an  individual,  he  is  solely  responsible.* 

Where  the  embezzlement  is  clearly  shown  to 
have  been  made  by  the  crew,  but  the  particular 
offenders  are  unknown,  and  from  the  circumstances 
of  the  case,  strong  presumptions  of  guilt  apply 
to  the  whole  crew,  all  are  liable ; but  where  no 
fault,  fraud,  connivance,  or  negligence  is  proved 
against  the  crew,  and  no  reasonable  presumption  is 
shown  against  their  innocence,  the  loss  must  be 
borne  exclusively  by  the  owner  or  master. f 

If  any  seaman  who  is  engaged  in  a salvage  en- 
terprise, embezzle  a part  of  tlm  property,  he  forfeits 
the  right  of  salvage. J 

* 1 Mason’s  R.  104.  f Ibid.  f Gallison’s  R.  593. 


176  CRIMES  COMMITTED  ON  THE  HIGH  SEAS. 


CHAPTER  X1Y. 

OF  CRIMES  COMMITTED  ON  THE  HIGH  SEAS. 

To  assist,  or  be  concerned  in  the  robbery  or  plun- 
der of  any  vessel  in  distress,  wrecked  or  stranded  ; or 
to  obstruct  or  attempt  to  obstruct  the  escape  of  any 
person  from  such  vessel ; or  to  hold  out  any  false 
lights,  or  to  extinguish  any  true  lights,  with  inten- 
tion to  bring  any  boat  or  vessel  into  danger  or  dis- 
tress, subjects  the  offender  to  a fine  of  $5,000  and 
imprisonment  and  confinement  to  hard  labor,  not 
exceeding  ten  years,  according  to  the  aggravation 
of  the  offence.* 

If  the  master  of  any  vessel,  while  abroad,  mali- 
ciously and  without  justifiable  cause,  forces  any 
officer  or  mariner  belonging  to  his  vessel,  on  shore  ; 
or  leaves  him  behind  in  a foreign  port,  refusing  to 
bring  him  home  again  when  such  officer  or  seaman 
is  willing  and  ready  to  return,  every  master  so  of- 
fending is  liable  to  a fine  not  exceeding  $500,  or 
to  be  punished  by  imprisonment  not  exceeding  six 
months,  according  to  the  aggravation  of  the  of- 
fence.f 

It  is  felony  and  punishable  with  death  for  any 
person  to  wilfully  and  maliciously  set  on  fire,  burn 


# Act  3d  March,  1825,  sec.  9. 


f Ibid,  sec.  10. 


CRIMES  COMMITTED  ON  THE  HIGH  SEAS.  177 


or  otherwise  destroy  any  vessel  of  war  of  the 
United  States,  or  to  assist  or  aid  in  the  same.* 

The  same  penalty  is  incurred  for  any  of  the  offi- 
cers or  mariners  of  any  merchant  vessel,  to  wilfully 
and  corruptly  cast  away,  burn  or  otherwise  destroy 
the  vessel  to  which  they  belong,  or  if  they  procure 
the  same  to  be  done,  they  suffer  a like  penalty. f 

If  the  owner  of  any  vessel  wilfully  and  corruptly 
cast  away,  burn  or  otherwise  destroy  any  vessel  of 
which  he  is  owner  in  part  or  in  whole,  or  direct  or 
procure  the  same  to  be  done  with  the  intent  or  de- 
sign to  prejudice  any  person  or  persons  who  may 
have  underwritten  upon  the  same,  he  is  deemed 
guilty  of  felony,  and  must  suffer  death. J 

To  conspire  with  other  persons  for  the  above 
purposes  or  to  be  concerned  in  the  building,  fitting 
out  or  other  equipment  of  any  vessel  to  be  sent  out 
for  such  a purpose,  subjects  the  offender  to  a fine 
of  not  exceeding  ten  thousand  dollars,  and  to  im- 
prisonment and  confinement  to  hard  labor,  not  ex- 
ceeding ten  years. $ 

If  the  crew  of  any  vessel,  or  any  one  or  more  of 
the  same,  by  threats  and  violence,  or  by  fraud  and 
conspiracy,  usurp  the  command  of  the  ship,  or  pre- 
vent the  lawful  commander  from  exercising  his 
just  authority,  or  commit  the  command  to  another 
person  not  lawfully  authorized  to  exercise  the  same, 
the  person  or  persons  so  offending,  and  their  aiders 

* Act  3d  March,  1825,  sec.  11.  f Act  26th  March,  1804,  sec.  1. 
f Act  26th  March,  1804,  sec.  2.  § Act  3d  March,  1825,  sec.  23. 


178  CRIMES  COMMITTED  ON  THE  HIGH  SEAS. 

and  abettors,  are  guilty  of  a mutiny  and  revolt,  and 
are  punishable  with  a fine  not  exceeding  two 
thousand  dollars  and  by  imprisonment  and  confine- 
ment to  hard  labor  not  exceeding  ten  years.* 

For  any  one  or  more  of  the  crew  of  any  vessel  to 
endeavor  to  make  any  revolt  or  riot  on  board,  or  to 
stir  any  others  of  the  crew  up  to  mutiny  or  insub- 
ordination, subjects  the  offender  to  a fine  not  ex- 
ceeding one  thousand  dollars,  or  to  punishment  to 
hard  labor  in  prison  not  exceeding  five  years,  or  to 
both,  according  to  the  aggravation  of  the  offence. f 

If  the  master,  or  other  officer,  of  any  vessel  on 
the  high  seas,  beat,  wound,  or  imprison  any  one, 
or  more,  of  the  crew  of  such  vessel,  without  justifi- 
able cause,  or  withhold  from  them  suitable  food 
and  nourishment,  or  inflict  upon  them  any  cruel,  or 
unusual  punishment,  through  malice,  hatred,  or  re- 
venge, every  person  so  offending,  is  liable  to  be 
punished  by  a fine  not  exceeding  one  thousand  dol- 
lars, or  by  imprisonment  not  exceeding  five  years, 
or  by  both,  according  to  the  aggravation  of  the  of- 
fence.;]; 

If  any  person,  or  persons,  upon  the  high  seas,  or 
where  the  tide  ebbs  and  flows,  on  board  of  any  ves- 
sel, commit  an  assault  upon  another,  with  a dan- 
gerous weapon,  with  intent  to  kill,  rob,  steal,  or  to 
commit  a mayhem  or  rape,  such  person  is  liable  to 
be  punished  by  fine  not  exceeding  three  thousand 

* Act  3d  March,  1825,  sec.  1.  f Ibid,  sec  2.  f Ibid.  sec.  3. 


CRIMES  COMMITTED  OF  THE  HIGH  SEAS.  179 


dollars,  or  by  imprisonment  not  exceeding  three 
years.* 

Jf  any  person  within  any  of  the  places  under  the 
sole  and  exclusive  jurisdiction  of  the  United  States, 
or  upon  the  high  seas,  takes  and  carries  away,  with 
an  intent  to  steal  or  purloin,  the  personal  goods  of 
another,  the  person  so  embezzling  such  property, 
is  liable  to  be  fined  not  more  than  four-fold  the 
value  thereof,  one-half  to  be  paid  to  the  owner  of 
the  goods,  and  the  other  half  to  the  informer  and 
prosecutor.  Persons  buying  or  secreting  such 
goods,  knowing  them  to  be  stolen,  or  harboring  or 
secreting  such  offenders,  knowing  them  to  have 
offended,  subject  themselves  to  a like  forfeiture. 
They  are  also  in  both  cases  liable  to  be  publicly 
whipped,!  not  exceeding  thirty-nine  stripes. 

Any  confinement  of  the  master,  whether  by  de- 
priving him  of  the  use  of  his  limbs,  or  shutting 
him  up  in  the  cabin,  or  by  intimidation,  preventing 
him  from  a free  use  of  every  part  of  the  vessel,  is  a 
confinement  in  contempt  of  the  law.J 

If  any  person  wilfully  and  maliciously  cut,  spoil, 
or  destroy  any  cordage,  cable,  buoys,  buoy-rope, 
head-fast,  or  other  fast  fixed  to  any  anchor  or  moor- 
ings, belonging  to  any  vessel,  boat  or  raft,  every 
person  so  offending  is  deemed  guilty  of  felony,  and 

# Act  3d  March,  1825,  sec.  22. 

f This  latter  remnant  of  barbarism  should  be  forthwith  repealed; 
as  doubtless  it  would  be,  if  only  once  brought  to  the  notice  of  those 
to  whom  that  duty  belongs. 

$ 1 Peters,  118.  213. 


180 


PIRACY. 


is  liable  to  be  punished  by  a fine  not  exceeding  one 
thousand  dollars,  and  by  imprisonment  and  confine- 
ment to  hard  labor  not  exceeding  five  years.* 

OF  PIRACY. 

Piracy  is  punished  by  death.  It  is  declared  to 
be  piracy  for  the  master  and  crew  of  one  vessel  up- 
on the  high  seas,  to  feloniously  and  violently, 
seize  upon  and  rob  the  master  and  crew  of  another 
vessel ; or  to  despoil  them  of  the  goods  and  effects 
intrusted  to  their  charge. 

So  also  it  is  piracy  for  the  master  or  mariners  of 
any  vessel,  to  piratically,  and  feloniously,  run 
away  with  any  vessel  committed  to  their  charge, 
or  any  goods  to  the  amount  of  fifty  dollars ; or  to 
yield  up  such  vessel,  voluntarily,  to  a pirate.  And 
so  likewise  is  it  piracy  for  any  seaman  to  lay  vio- 
lent hands  upon  his  commander,  thereby  to  hinder 
and  prevent  his  fighting  in  defence  of  the  ship  or 
goods  committed  to  his  trust. f 

The  crime  of  piracy  may  be  committed  in  any 
open  roadstead,  river,  creek,  haven,  basin  or  bay, 
where  the  sea  ebbs  and  flows,  as  well  as  upon  the 
high  seas  ; and  is  punished  in  the  same  manner. 

So  also,  if  any  person  or  persons,  engaged  in  any 
piratical  cruise,  land  from  their  vessel  or  vessels, 
on  shore,  and  commit  a robbery,  it  is  deemed  and 
punished  as  piracy. 

* Act  3d  March,  1825,  sec.  7.  f Act  30th  April,  1790,  sec.  8. 


PIRACY. 


181 


By  the  act  of  the  15th  of  May,  1820,  it  is  de- 
clared to  be  piracy  for  any  one  to  be  engaged  in 
kidnapping,  on  any  foreign  shore,  any  negro  or 
mulatto,  not  held  to  service  or  labor  by  the  laws  of 
either  of  the  states  or  territories  of  the  United 
States  ; or  for  any  one  to  decoy,  or  forcibly  bring, 
or  carry,  or  receive,  such  negro  or  mulatto,  on 
board  of  any  vessel,  with  intent  to  make  the  same 
a slave  ; and  this  act  extends  to  all  persons  volun- 
tarily employed  on  board  of  vessels  transporting  the 
same,  and  also  to  all  citizens  of  the  United  States, 
whether  employed  on  board  of  foreign  or  domestic 
vessels,  as  well  as  to  all  foreigners  employed  on 
board  of  vessels  belonging  to  citizens  of  the  United 
States. 

The  captors  of  any  piratical  vessel,  upon  her  be- 
ing brought  into  port,  and  legally  condemned,  be- 
come entitled  to  the  proceeds  of  the  sale,  made  un- 
der order  of  the  court  having  jurisdiction. 


16 


182 


AGREEMENT  FOR  INSURANCE. 


CHAPTER  XY. 


MARINE  INSURANCE. 


Of  an  agreement  for  insurance — The  policy  and  its  usual  stipula- 
tions— Implied  conditions  of  the  policy — Description  of  the  as- 
sured— Of  valued  policies — Of  -open  policies — Of  representation 
and  concealment — Of  facts  that  must  be  disclosed — Of  express 
warranties  and  conditions — Of  the  time  when  the  risk  commen- 
ces and  when  it  ends — Of  the  various  perils  and  risks  against 
which  the  underwriter  insures — Description  of  the  subject  insur- 
ed— Insurable  intere.it  of  the  mortgagor,  mortgagee,  charterer, 
factor,  supercargo,  lender  on  bottomry,  borrower  on  bottomry  ; 
on  profits,  freight,  &c. — What  risks  may  be  insured  against — 
What  is  a loss  within  the  policy — Of  partial  loss  and  adjustment 
— Of  maritime  loans,  bottomry  and  respondentia — Of  deviation 
— Of  abandonment  of  the  ship — Of  abandonment  of  the  cargo — 
Of  general  and  particular  average— Of  salvage — Of  barratry. 

Insurance  is  a contract  whereby,  for  a stipulated 
consideration,  one  party  undertakes  to  indemnify 
the  other  against  certain  risks.  The  party  under- 
taking to  make  the  indemnity  is  called  the  insurer 
or  underwriter ; the  party  to  be  indemnified  the 
assured  or  insured.  The  agreed  consideration  is 
called  a premium ; the  instrument  by  which  the 
contract  is  made,  a policy : the  events  and  causes 
of  loss  insured  against,  risks  or  perils ; and  the 
property  or  rights  of  the  assured,  in  respect  to 
which  he  is  liable  to  loss,  the  subject  or  insurable 
interest. 


AN  AGREEMENT  FOR  INSURANCE. 

When  the  terms  of  an  insurance  upon  any  prop- 
erty has  been  agreed  upon,  and  nothing  remains 


USUAL  STIPULATIONS  OF  POLICY. 


183 


but  to  make  out  the  policy,  the  parties  consider  the 
risk  to  be  assumed  and  the  premium  due  from  that 
time.  But  it  does  not  appear  that  the  parties  are 
legally  bound  until  the  policy  is  filled  up,  or  some 
memorandum  of  the  contract  signed,  and  either  ac- 
tually or  constructively  delivered  to  the  assured. 
Insurance  companies  usually  keep  a book  in  which 
all  applications  for  insurance  are  recorded  ; and 
when  the  bargain  is  made,  and  nothing  remains 
but  to  make  out  the  policy  and  receive  the  pre- 
mium note,  the  word  “ done,”  is  written  upon  the 
margin,  together  with  the  rate  of  premium.  This 
is  usually  deemed  a completion  of  the  contract,  so 
that  if  a loss  should  happen  before  the  policy  should 
be  actually  filled  up  and  delivered,  the  insurers 
would  be  bound.  The  insured,  however,  ought 
not  to  rest  upon  this  evidence  of  the  contract,  but 
should  lose  no  time  in  giving  the  premium  note 
and  taking  the  policy  away,  and  by  this  means  pre- 
vent all  misconception  of  the  nature  of  the  con- 
tract. 

THE  POLICY,  AND  ITS  USUAL  STIPULATIONS. 

A marine  policy  contains,  in  general,  that  the 
underwriters  cause  the  insured  to  be  insured  in  a 
certain  sum,  on  ship,  cargo,  freight  or  profits,  for  a 
certain  voyage,  or  time,  against  certain  enumerated 
risks ; for  which  they  confess  themselves  to  have 
been  paid  a premium  at  a certain  rate  per  cent. 


184 


USUAL  STIPULATIONS  OF  TOLICY. 


These  are  the  leading  and  substantial  parts  of  every 
policy,  and  in  connection  with  these  are  introduced 
all  the  provisions,  stipulations,  conditions,  and 
warranties. 

The  express  warranties  usually  contained  in  the 
policy,  are,  that  the  ship  sailed,  or  will  sail,  on,  or 
before  a certain  day;  that  she  carries  a certain 
number  of  guns,  is  manned  by  such  a crew,  carries 
a license;  or  that  the  vessel,  or  cargo  is  owned  by 
Americans  or  people  of  some  particular  country ; or 
is  neutral.  But  it  is  not  uncommon  to  warrant  ex- 
pressly against  the  risk  of  illicit  trade,  and  of  liabil- 
ity for  partial  loss  on  the  vessel  or  goods, — and  to 
insert  many  other  conditions  which  tend  to  qualify 
the  force  of  the  contract,  as  usually  construed ; it 
being  a general  rule  that  the  written  part  of  the 
policy  shall  control  the  printed  part. 

In  respect  to  the  risks,  it  is  often  provided  that 
the  assured  shall  have  liberty  to  touch  at  certain 
ports  out  of  the  usual  course  of  the  voyage,  or  to 
take  letters  of  marque  and  cruise,  or  to  carry  the 
goods  on  deck,  or  to  carry  simulated  papers. 

It  is  customary,  also,  for  the  parties  to  agree  that, 
in  case  of  any  prior  insurance  on  the  same  subject, 
the  policy  shall  be  valid  only  to  the  amount  of  the 
deficiency  of  such  prior  insurance  to  cover  the  full 
value  of  the  property,  and  that  the  insurer  will  re- 
turn the  premium  on  the  excess  over  such  value  ; 
and  that  the  rights  aud  obligations  of  the  parties 
shall  not  be  affected  by  any  subsequent  insurance. 


USUAL  STIPULATIONS  OF  POLICY. 


185 


Though  the  insurer  generally  acknowledges  in 
the  policy  that  he  has  been  paid  the  premium,  yet 
the  payment  is  in  fact  generally  made  in  the  prom- 
issory note  of  the  assured,  [f  a loss  occurs,  it  is 
stipulated  that  the  amount  of  the  premium  note,  if 
unpaid,  and  any  other  sums  due  or  coming  due 
from  the  insured,  may  be  deducted  from  the  sum 
payable  to  the  assured  under  the  policy. 

It  is  usually  stipulated,  in  the  form  of  policies 
used  in  the  United  States,  that  there  shall  be  no 
demand  upon  the  underwriters,  to  make  good  any 
loss  upon  the  ship,  and  most  other  subjects  of  insur- 
ance, unless  it  exceed  five  per  cent.,  except  in  a 
case  of  general  average. 

Certain  kinds  of  merchandize  go  under  the  name 
of  memorandum  articles , from  the  circumstance  of 
their  having  been  introduced  under  a memorandum, 
or  N.  B.  By  the  form  of  policy  in  most  frequent 
use  in  the  United  States,  the  insurers  say  they  will 
not  “ be  liable  for  any  partial  loss  on  hemp  and 
Jlax,  unless  the  loss  amount  to  twenty  per  cent,  on 
the  whole  aggregate  value  of  such  articles  ; nor  for 
any  partial  loss  on  sugar,  flax  seed,  bread,  tobacco 
and  rice , unless  the  loss  amount  to  seven  per  cent, 
on  the  whole  aggregate  value  of  such  articles;  nor 
for  any  partial  loss  on  salt,  grain  . fish,  fr  uit,  hides, 
skins . or  other  goods  that  are  esteemed  perishable 
in  their  own  nature,  unless  it  amount  to  seven  per 
cent,  on  the  whole  aggregate  value  of  such  articles, 
and  happen  by  stranding.” 

16* 


186  IMPLIED  CONDITIONS  OF  THE  POLICT. 


In  some  policies  it  is  agreed,  that,  in  case  of  a 
return  of  premium,  the  insurer  shall  retain  one-half 
percent,  upon  the  sum  insured.  This  is  considered 
to  be  a compensation  to  him  for  the  trouble  of  mak- 
ing a contract,  which  he,  on  his  part,  is  ready  to 
fulfil,  but  of  which  the  assured  neglects  to  avail 
himself.  But  most  of  the  insurance  companies  in 
Boston  have  omitted  this  provision  in  their  policies 
of  late  years,  and  return  the  whole  premium  in 
case  of  short  property. 

OF  THE  IMPLIED  CONDITIONS  OF  THE  POLICT. 

It  is  an  implied  condition  of  evt^-y  policy,  and 
of  the  same  force  as  if  it  were  expressly  inserted  in 
the  instrument,  that  the  assured,  at  the  time  of 
making  the  contract,  shall  faiily  disclose  to  the  un- 
derwriters every  fact  material  to  the  risk,  which  is 
exclusively  within  his  knowledge,  and  which  is 
not  embraced  by  some  agreement  in  the  policy; 
and  if  this  condition  is  not  complied  with,  the  pol- 
icy is  void. 

It  is  always  an  implied  condition  that  the  voy- 
age shall  be  pursued  by  the  usual  route,  and  in  the 
usual  manner.  And  that  the  ship  shall  be  provided 
with  all  the  necessary  papers  required  by  the  laws 
of  the  country  to  which  she  belongs,  the  law  of 
nations  and  treaties. 

The  assured  is  understood,  by  the  act  of  procur- 
ing the  policy,  to  warrant  that  the  vessel  is  sea- 


DESCRIPTION  OF  THE  ASSURED. 


187 


worthy,  and  in  every  respect  fit  for  the  voyage  or 
service  on  which  she  is  employed.  This  agree- 
ment is  uniformly  a part  of  the  contract,  though  it 
is  never  expressed  in  the  policy. 

WHO  MAY  INSURE,  AND  PROCURE  INSURANCE. 

In  this  country,  any  person  of  legal  age,  except 
an  alien  enemy,  may  become  an  underwriter  on 
property  at  risk;  and,  with  the  same  limitation  as 
to  alien  enemies,  every  person  in  these  United 
States  has  a legal  right  to  procure  insurance.  Most 
of  the  underwriting  in  this  country  is  carried  on, 
however,  by  incorporated  companies. 

DESCRIPTION  OF  THE  ASSURED. 

In  many  policies  the  assured  is.  so  described  that 
any  person  may  be  comprehended,  and  avail  him- 
self of  the  contract  by  proving  his  interest,  and 
showing  that  the  contract  was  intended  for  him. 
The  manner  of  expression,  where  the  intention  is 
to  use  a sweeping  clause  which  shall  at  all  events 
take  in  the  person  interested,  is,  after  naming  the 
broker,  or  other  person  who  procures  the  insurance, 
to  add  that  he  is  insured  for  “ himself  and  whom  it 
may  concern.” 

A policy  in  the  name  of  any  particular  person, 
with  the  clause  “ for  whom  it  may  concern ,”  or 
other  equivalent  words,  will  be  enforced  to  protect 


188 


DESCRIPTION  OF  THE  ASSURED. 


the  interest  of  any  person  in  whose  behalf  it  was 
intended,  and  by  whose  authority  it  was  effected. 
But  it  must  be  made  to  appear,  not  only  that  the 
person  claiming  had  an  interest  in  the  property  in- 
sured, but  that  he  authorized  the  insurance  to  be 
effected,  or  adopted  it  when  made.* 

If  a policy  does  not  contain  this  general  clause, 
no  others  than  those  named  as  the  assured,  or  on 
whose  account  it  is  expressed  to  be  made,  can 
avail  themselves  of  it.f 

Where  A.  procured  insurance,  in  his  oion  name, 
upon  property  belonging  to  himself  and  B.,  in  the 
sum  of  “$10,000,  on  property  on  board  of  the  ship 
Northern  Liberties,  as  property  nUght  appear,” 
meaning  by  those  words  to  cover  both  his  own  and 
B.:s  property  on  board,  the  court  held  that  the  in- 
surance covered  only  the  portion  of  the  property 
belonging  to  A.J 

Where  insurance  is  procured  by  an  agent  for  his 
principal,  he  may  describe  himself  as  agent,  gener- 
ally, without  naming  his  principal  or  principals, 
and  he  will  be  permitted  to  prove  for  whose  benefit 
the  insurance  was  really  effected. § 

In  case  insurance  is  effected  by  an  agent,  and  a 
loss  happens,  the  premium  note,  if  unpaid,  may  be 
deducted  from  the  loss,  and  all  other  notes  given 
by  the  agent  for  the  same  principal ; but  the  notes 
given  by  the  same  agent  for  other  parties  cannot 
be  offset  against  the  loss. || 

* Condy’s  Marshall,  473,  note,  f 11  Pick.  85.  4 Mass.  647. 

% ICranch,  419.  § 12  Mass.  E.  SO.  ||  1 Sumner,  471. 


VALUED  POLICIES. 


189 


OF  VALUED  POLICIES. 

Insurance  being  a contract  of  indemnity,  the  un- 
derwriters are  not  liable  to  pay  any  loss  except  such 
as  the  assured  has  actually  sustained.  If  the  prop- 
erty insured  be  worth  but  $800,  and  an  insurance 
of  $1,000  be  effected  upon  it,  still,  if  jts  loss  ensue, 
the  insurer  can  be  called  upon  only  to  pay  the 
amount  of  the  loss  sustained  by  the  owner,  viz. 
$800.  If,  on  the  other  band,  the  property  be 
worth  $1,000,  and  be  insured  for  $S00  only,  then, 
in  case  of  its  loss,  the  underwriter  is  only  liable  to 
the  amount  of  $800,  and  the  remaining  risk  of 
$200  is  taken  by  the  owner  himself;  he  is  his  own 
insurer  to  that  amount.  If  the  value  of  the  subject 
is  exactly  equal  to  the  sum  insured,  the  whole 
amount  insured  is  to  be  paid. 

It  becomes,  then,  essential  to  know  the  value  of 
the  articles  insured,  before  any  loss  sustained  upon 
them  can  be  adjusted. 

Policies  are  of  two  kinds  — valued  and  open. 
Those  in  which  the  value  of  the  subject  is  agreed 
upon,  are  called  valued  policies.  If  the  valuation 
thus  agreed  upon  be  neither  intended  as  a cover  for 
a wager,  by  both  parties,  nor  fraudulently  made  by 
the  assured , it  is  binding  on  the  parties,  and  deter- 
mines the  value  of  the  property.  If  the  parties, 
without  intending  to  wager,  fairly  agree  to  estimate 
the  property  at  a high  rate,  their  agreement  will  be 


190 


VALUED  POLICIES. 


valid.  Unless  the  valuation  is  grossly  enormous, 
so  as  to  be  indicative  of  fraud,  it  will  not  be  inquir- 
ed into.  Some  value,  however,  must  be  proved,  or 
the  policy  never  attaches.* 

Vessels  are  generally  insured  by  valued  policies. 
This  prevents  the  trouble  and  perplexity  attendant 
upon  proving  the  value  of  the  ship  after  the  loss 
has  occurred,  which  always  must  be  a matter  of 
much  contrariety  of  opinion.  If  left  to  be  proved 
after  a loss  has  occurred,  it  must,  to  say  the  least, 
be  hard  to  arrive  at  a satisfactory  conclusion. 
Where  the  owner  of  the  ship  is  the  proprietor  of 
the  goods  on  board,  an  insurance  upon  her  freight 
is  generally  made  by  a valued  policy.  In  other 
cases  the  amount  of  the  freight  is  easily  proved, 
and  therefore  the  necessity  of  insuring  it  by  a val- 
ued policy  does  not  exist.  But  it  is,  nevertheless, 
not  unusual  to  value  the  freight  in  the  latter  case. 

Goods  are  more  frequently  insured  by  open  poli- 
cies, since  the  value  is  easily  proved  by  the  in- 
voices, or  by  showing  the  price  current  at  tire  time. 
Bm  if  the  goods  are  of  a kind  the  price  current  of 
which  cannot  be  easily  shown  ; or  if  the  price  has 
greatly  changed,  subsequently  to  the  purchase  of 
the  goods;  or  if  their  value  has  been  increased  by 
transportation,  the  insurance  is  often  made  upon 
them  by  a valued  policy.  Hence  goods  obtained 
by  barter  at  such  places  as  the  northwest  coast  of 
America,  South  Sea  islands,  or  coast  of  Africa, 
* 3 Bin.  205.  2 Burr,  U9S.  5 Crunch,  110. 


VALUED  POLICIES. 


191 


where  there  may  be  no  standard  value  in  money, 
or  where  the  currency  of  the  place  of  shipment  is 
of  an  uncertain  and  fluctuating  value,  as  in  Havti 
and  many  parts  of  South  America  at  the  present 
time  ; or,  where  again  the  profits  of  the  expedition 
depend,  in  a great  measure,  upon  the  market  value 
of  the  return  cargo  in  the  home  port,  which  may 
very  much  exceed  the  prime  cost ; in  these,  and 
similar  cases,  it  is  usual  to  affix  a value  to  the  prop- 
erty in  the  policy,  either  by  a valuation  in  gross,  or 
by  valuing  the  currency  in  which  the  invoices  are 
made  out  at  a certain  price  in  federal  money;  as 
for  instance,  20  cents  per  franc;  $5  per  pound  ster- 
ling ; 42  cents  per  guilder;  75  cents  per  rix  dol- 
lar, &c.  By  this  means  the  assured  is  enabled  to 
obtain  a full  indemnity,  and  much  perplexity  is 
avoided  in  adjusting  the  loss. 

In  adjusting  a loss  under  an  open  policy  on 
freight,  it  is  usual  to  take  the  current  rate  at  the 
time  the  vessel  took  in  her  cargo.  But  the  rule 
often  works  much  injustice,  as  the  rate  may  be  in- 
flated or  depressed  by  circumstances ; and  it*is 
therefore  advisable,  in  most  cases,  that  the  freight, 
should  be  insured  under  a valued  policy. 

A valuation  in  a policy  only  affects  the  parties  to 
it,  and  the  same  property  may  be  valued  differently 
in  different  policies,  and  each  valuation  will  be 
valid  as  respects  the  parties  to  the  contract  of 
which  it  is  a part. 

A ship  being  valued  in  one  policy  at  $6,000,  and 


192 


VALUED  POLICIES. 


another  at  $8,000,  and  $6,000  being  paid  on  the 
latter  policy,  the  underwriter  on  the  former  con- 
tended that,  as  the  assured  had  been  paid  the  sum 
at  which  the  ship  was  valued  in  the  policy  sub- 
scribed by  them,  he  could  claim  nothing  of  them. 
Lord  Ellenborough  said,  “ The  valuation  is  only 
conclusive  between  the  assured  and  the  underwri- 
ters, without  taking  into  consideration  what  had 
been  transacted  between  the  assured  and  third  per- 
sons. 

Where  the  assured  expects  goods  to  be  shipped, 
but  does  not  know  the  kind  or  the  amount,  the  pol- 
icy is  sometimes  made  on  goods  “ to  be  thereafter 
declared  and  valued.”  Under  a policy  in  this  form, 
the  declaration  of  the  value,  to  make  it  a valued 
policy,  must  be  made  by  the  assured  before  he  has 
intelligence  of  a loss.* 

In  general  average  the  valuation  in  the  policy  is 
not  regarded,  since  the  adjustment  in  that  case  is 
made  at  the  port  of  destination,  and  upon  the  value 
of  the  goods  or  property  at  that  port.  Whether  the 
property  is  insured  or  not,  valued  in  the  policy  or 
not,  is  not  a matter  of  inquiry  in  adjusting  general 
average.  When  the  adjustment  has  been  made, 
and  the  ship,  freight  or  goods,  have  contributed,  the 
owner  may,  then,  if  there  was  insurance  upon 
either,  call  upon  the  underwriters  for  the  amount 
thus  contributed. 

But  in  case  of  partial  loss  of  a ship  or  goods,  the 
* 8 Term  R.  15,  note. 


VALUED  POLICIES, 


193 


valuation  in  the  policy  must  prevail  in  adjusting 
the  loss.  The  policy  is  not,  as  it  has  been  con- 
tended that  it  should  be,  opened  for  adjustment. 
The  principle  on  which  the  adjustment  is  made 
may  be  illustrated  in  this  manner.  Suppose  A.  ships 
1000  barrels  of  flour  which  cost  him  $6,000.  He 
procures  insurance  upon  500  barrels  of  the  same  in 
an  open  policy,  and  on  the  remaining  500  barrels 
he  gets  insurance,  valuing  them  in  the  policy  at 
$4,000.  A partial  loss  ensues.  At  the  port  of  des- 
tination it  is  found  that  the  L000  barrels  of  flour, 
sound,  would  have  been  worth  12,000 ; but  in  their 
damaged  state  are  worth  only  $10,000.  A loss 
then,  of  $2,000  upon  the  flour  has  accrued,  or  16§ 
per  cent.  Consequently  under  the  open  policy,  in 
which  the  cost  is  proved  to  have  been  $3,000,  A. 
recovers  16A  per  cent.,  or  $500;  and  on  the  500 
barrels,  which  he  valued  at  $4,000,  he  recovers  also 
16|  per  cent.,  which  is  $666  67.  The  perfect  jus- 
tice of  the  rule  is  apparent  when  we  consider  that 
if  A.  paid  a premium  of  one  per  cent.,  it.  would  be 
$30  on  the  open,  and  $40  on  the  valued  policy, 
which  two  sums  bear  an  exact  proportion  to  the 
amount  recovered  under  the  policies.  The  latter 
being  just  one  third  more  than  the  former. 

The  merchant  should,  however,  be  careful  when 
procuring  insurance,  on  his  ship,  cargo , freight , 
and  profits,  or  upon  any  two  of  them,  to  value  each 
separately  in  the  policy.  Otherwise  the  policy 
17 


194 


OPEN  POLICIES. 


must  be  opened  for  the  adjustment  of  a partial  loss 
on  either  of  them. 

The  insurer,  whether  under  a valued,  or  an  open 
policy , is  only  liable  for  partial  losses  in  the  pro- 
portion which  the  amount  he  insured  bears  to  the 
■whole  value  of  the  subject  insured.  Hence,  if  cer- 
tain goods  be  valued  at  $5,000,  and  A.  insures  upon 
them  the  sum  of  $2,500,  and  afterward  a partial 
loss  upon  them  takes  place,  by  which  they  are 
damaged  to  the  amount  of  $2,500,  A.  will  in  that 
case  be  liable  for  50  per  cent.,  or  $1,250  of  such 
partial  loss  only,  since  he  only  insured  to  the 
amount  of  50  percent,  on  the  value  of  the  property. 

OF  OPEN  POLICIES. 

If  the  value  of  the  subject  insured,  is  not  agreed 
upon  in  the  policy,  it  must  be  proved  by  the  assur- 
ed before  he  can  recover  a loss,  and  certain  rules 
are  adopted  in  ascertaining  its  amount. 

In  the  case  of  both  ship  and  cargo,  the  value  of 
the  property,  at  the  commencement  of  the  risk,  is 
the  value  which  governs  in  the  adjustment  of  the 
loss.  If  it  be  a ship  that  is  insured,  and  her  value 
at  the  commencement  of  the  risk  is  $9,000,  it  mat- 
ters not  that  subsequently,  either  by  wear  or  tear, 
or  by  a reduction  in  the  price  of  ships,  she  has  be- 
come worth  no  more  than  $6,000,  her  value  when 
the  risk  was  taken  must  prevail;  and  in  case  of  a to- 


OPEN  POLICIES. 


195 


tal  loss,  the  $9,000  would  be  recoverable  of  the  in- 
surers.* 

Insurance  intends  no  more  than  an  indemnity  to 
the  merchant  for  the  property  he  has  at  risk.  It  is 
not  intended  by  the  contract  of  insurance  to  put  the 
assured  in  the  same  situation,  in  case  of  a loss,  that 
he  would  have  been  in,  had  the  adventure  termi- 
nated successfully.  It  only  pretends  to  place  the 
assured,  in  case  of  loss,  in  the  same  situation  he 
was  in  when  the  adventure  commenced. 

The  ship,  as  a subject  of  insurance,  includes  the 
tackle,  boat,  provisions,  and  whatever  is  necessary 
to  equip  her  for  the  voyage.  To  this  is  to  be  add- 
ed the  premium,  and  the  whole  goes  to  make  up 
the  value  of  the  ship.  If  the  ship  has  been  recently 
purchased,  then  her  cost  and  the  prefninm  is  her 
valuation  in  the  policy. f 

The  insurable  interest  in  goods,  is  their  invoice 
value  at  the  port  of  lading,  together  with  the  pre- 
mium and  shipping  charges.  The  most  satisfactory 
evidence  of  their  value  is,  generally,  the  price  paid 
for  them,  in  case  they  are  purchased  near  the  time 
when  the  risk  commences  upon  them.  Hence,  if 
an  open  policy  is  made  upon  successive  passages 
from  port  to  port,  and  upon  shipments  successively 
made  at  different  ports,  though  the  subsequent  ship- 
ments are  only  the  proceeds  of  the  first,  yet  the  in- 

* 7 Mass.  E.  365.  9 do.  436.  7 Johns.  343. 
f 1 Johns.  80.  2 Valin,  55. 


195 


OPEN  POLICIES. 


surable  interest  may  be  greater,  for  the  invoice  value 
of  each  shipment  is  the  measure  of  the  interest.* 
Besides  the  price  paid  for  goods,  the  charges  upon 
them  are  included  in  the  amount  of  interest.  These 
include  labor,  storage,  expense  of  transportation, 
and  commissions  actually  paid  to  agents  and  fac- 
tors. To  these  are  to  be  added  the  premium. f 
If  the  goods  have  been  transported,  either  by 
land  or  sea,  subsequently  to  the  purchase  of 
them  by  the  assured,  and  previous  to  the  com- 
mencement of  the  risk,  the  expense  of  such  trans- 
portation is  a part  of  the  interest  to  be  covered. 
But  the  freight,  or  other  expense  to  be  incurred  on 
the  goods  during  the  risk , are  not  a part  of  the  in- 
surable interest.J 

Freight  advanced  by  the  owner  of  the  goods,  and 
not  to  be  recovered  back  in  any  event , constitutes 
a part  of  the  insurable  interest.  It  is  a portion  of 
the  price  or  cost  of  the  goods. <§> 

Where  the  insurers  reserve  one  or  two  per  cent, 
out  of  all  losses,  it  is  necessary  to  add  the  same 
proportion, — that  is,  as  1 is  to  99,  or  2 to  98, — to 
the  amount  of  the  interest,  if  a full  indemnity  is  in- 
tended, so  that  in  a total  loss  the  assured  may  re- 
ceive back  the  capital  put  at  risk. 

The  insurable  interest  in  freight  is  the  gross 
amount  to  be  received  according  to  the  bills  of  lad- 
ing or  charter  party.  ||  • 

* Philips  on  Ins.  p.  322.  f 9 Johns.  29.  | Phillips,  p.  322. 

§ Ibid.  p.  323.  U Stevens  on  Average,  p.  176. 


REPRESENTATION  AND  CONCEALMENT.  197 

Profits.  There  should  never  be  an  open  policy  on 
profits,  since,  in  case  of  loss,  the  actual  loss  of  profits 
sustained  must  be  a matter  of  much  contrariety  of 
opinion,  if  not  of  litigation.  In  New  York  the 
courts  have  adopted  the  rule,  that  in  a policy  on 
profits,  the  sum  insured  is  the  valuation,  and  that 
the  act  of  making  the  policy  is  an  agreement  to 
that  effect.  In  this  case  the  only  question  will  be, 
whether  the  whole  of  the  goods  were  at  risk,  of 
which  the  profits  were  insured. 

The  lender  on  bottomry,  or  respondentia,  has  an 
interest  to  the  amount  of  the  loan,  and  the  borrow- 
er may  insure  the  excess  of  the  value  of  the  prop- 
erty over  that  amount. f 

OE  REPRESENTATION  AND  CONCEALMENT. 

Any  contract  obtained  by  the  fraud  of  a party,  is 
void  in  respect  to  the  other  parties.  This  is  es- 
pecially the  case  in  regard  to  insurance,  in  which 
fair  dealing  and  good  faith  are  strictly  required  by 
the  law,  and  much  relied  upon  by  the  parlies.  The 
contract  is  generally  entered  into  by  the  insurer  in 
consequence  of  the  representations  of  the  assured, 
and  if  these  representations  do  not  enable  the  in- 
surer to  make  a just  estimate  of  the  risk,  it  is  plain 
that  he  ought  not  to  be  bound  by  the  contract. 

A representation  is  a material  fact  stated  before 
completing  the  contract,  by  either  party  to  the  oth- 

17* 


f 2 Caines  eases,  110. 


198 


REPRESENTATION  AND  CONCEALMENT. 


er ; and  a misrepresentation  is  the  statement  of 
such  a fact  which  turns  out  not  to  be  true.  A con- 
cealmejit,  on  the  other  hand,  is  the  suppression  of 
a material  fact  within  the  knowledge  of  either 
party,  which  the  other  has  not  the  means  of  know- 
ing, or  is  not  presumed  to  know. 

If  either  party,  whether  by  design , or  through 
negligence , mistake , or  oversight , conceals  or  mis- 
represents a fact  material  to  the  risk,  the  contract 
is  void  with  respect  to  the  other  party.  But  the  mis- 
representation or  concealment  must  be  of  a fact  ma- 
terial to  the  very  risk  or  risks  insured  against , to 
work  an  avoidance  of  the  policy.* 

A representation  made  to  an  underwriter,  must 
be  true  or  he  is  discharged  ; and  if  the  assured  rep- 
resents facts  without  knowing  the  truth,  he  takes 
the  risk  upon  himself. 

If  the  assured,  or  his  broker,  omits  to  state  a ma- 
terial circumstance,  supposing  it  not  to  be  material, 
this  discharges  the  underwriter.! 

f an  underwriter  insures  a vessel  that  he  knows 
to  have  arrived,  the  policy  is  void.J 
The  representations  ought  to  be  reduced  to  writing, 
and  signed  by  the  parties.  If  an  insurance  broker 
makes  representations  that  he  ought  not  to  have 
made,  he  is  liable  for  the  damages  that  may  ensue 
therefrom  to  his  principal. 

If  the  assured  states  a mere  expectation  or  opin- 


* 1 Term  R.  p.  12.  f Doug.  R.  306,  note.  $ 3 Burr,  1905. 


FACTS  TO  BE  DISCLOSED. 


199 


eon,  or  expresses  himself  in  a qualified  or  doubtful 
manner,  yet  at  the  same  time  fairly,  but  without 
any  absolute  assertion  of  a fact,  it  is  not  a represen- 
tation, and  does  not  avoid  the  policy.*  Where  the 
assured  represented  that  he  expected  to  load  his 
vessel  with  hay,  and  after  procuring  insurance  upon 
her,  took  in  paving  stones,  and  she  was  subsequent- 
ly lost,  it  was  held  not  to  be  a misrepresentation, 
but  merely  a statement  of  an  expectation , and  did 
not  avoid  the  policy. 

OF  FACTS  THAT  MUST  BE  DISCLOSED. 

The  assured  is  not  required  to  represent  facts  of 
general  notoriety,  or  which  are  presumed  to  be 
known  to  those  conversant  with  the  trade  ; but  he 
is  required  to  state  fairly  and  fully  other  facts  with- 
in his  knowledge  that  are  material  to  the  risk, 
If  a knowledge  of  the  circumstances  suppressed, 
would  have  induced  the  insurer  to  demand  a Irish- 
er  premium,  or  to  refuse  to  underwrite,  it  will  in- 
validate the  policy. f 

The  usages  of  trade  need  not  be  stated,  since 
those,  the  underwriter  is  presumed  to  know.  The 
insured  need  not  state  that  the  ship  is  seaworthy, 
or  any  facts  which  go  to  prove  her  so,  because 
every  contract  of  insurance  is  upon  the  implied 
warranty  of  the  seaworthiness  of  the  ship. 


* Cowper,  785. 


f 3 Dal.  491.  12  Johns.  517. 


200 


FACTS  TO  BE  DISCLOSED. 


If  the  merchant  has  heard  that  his  ship  has  been 
captured,  or  sunk,  or  that  a ship  resembling  her  has 
met  with  such  a disaster,  though  both  are  but 
mere  rumors,  yet  he  must  disclose  them  to  the  in- 
surer if  he  would  afterwards  procure  insurance,  oth- 
erwise the  policy  will  be  void.* 

If  after  giving  instructions  for  effecting  a policy, 
the  person  who  has  given  the  instructions  receives 
intelligence  material  to  the  risk,  he  must  imme- 
diately disclose  it,  or  countermand  his  instruc- 
tions.! 

If  the  vessel  is  known  to  be  out  of  time,  the  cir- 
cumstance must  be  stated  to  the  underwriters. t 
If  the  time  of  sailing  be  incorrectly  stated,  so  as 
to  make  the  insurer  believe  that  the  vessel  is  not 
out  of  time,  when,  in  fact,  she  is  out  of  time,  the 
policy  will  not  bind  the  underwriters. <§> 

Material  facts  must  be  fully  and  fairly  stated. 
Where  the  assured  knew  that  there  had  been  a 
violent  storm  at  Norfolk,  about  eleven  hours  after 
the  vessel  sailed  from  that  port,  and  he  represented 
to  the  underwriters  that  there  had  been  “blowing 
weather  and  severe  storms  on  the  coast  after  the 
vessel  had  sailed,”  without  mentioning  the  particu- 
lar storm,  a majority  of  the  judges  of  the  supreme 
court  in  New  York  held  it  to  be  a coucealmcnt.\\ 

It  is  sufficient  to  represent  facts,  and  the  assured 


* 2 P.  W.  170. 
§ Park,  285. 


f Ibid.  | 1 Esp.  373. 

||  2 Caines,  57. 


EXPRESS  WARRANTIES. 


201 


may  be  silent  as  to  any  speculations  or  apprehen- 
sions that  may  be  grounded  upon  them.  The  un- 
derwriters may  be  left  to  draw  their  own  inferen- 
ces from  the  facts  disclosed. 

OF  EXPRESS  WARRANTIES  AND  CONDITIONS. 

An  express  warranty  is  an  agreement  expressed 
in  the  policy , whereby  the  assured  stipulates  that 
certain  facts  relating  to  the  risk  are,  or  shall  be, 
true ; or  certain  acts  relating  to  the  same  subject, 
have  been,  or  shall  be,  done.  The  effect  of  an  ex- 
press warranty  in  the  policy  is  to  make  it  vital  to 
the  validity  of  the  same,  that  the  warranty  should 
be  complied  with.  It  is  no  matter  that  the  act  or 
circumstance  warranted,  is  not  material  to  the  risk. 
It  is  a part  of  the  contract  that  the  matter  is  as  it  is 
represented,  and  the  materiality,  or  immateriality, 
signifies  nothing.  The  only  question  is  as  to  the 
mere  fact. 

An  express  warranty  or  condition  is  always  a 
part  of  the  policy,  but  like  any  other  part  of  the  ex- 
press contract,  may  be  written  in  the  margin,  or  con- 
tained in  proposals  or  documents  expressly  refer- 
ed  to  in  the  policy,  and  so  made  a part  of  it.# 

A warranty  is  often  made  by  saying,  expressly, 
in  the  policy,  that  the  assured  warrants  such  a fact. 
But  a formal  expression  of  this  sort  is  not  requisite 
to  constitute  a warranty.  Any  direct,  or  even  inci- 


* Phillips,  p.  125. 


202 


EXPRESS  WARRANTIES. 


dental  allegation  of  a fact  relating  to  the  risk,  has 
been  held  to  constitute  a warranty.  If  insurance 
be  made  on  the  “ Swedish  brig  Sophia,”  the 
“American  ship  Minerva,”  or  “on  goods  on  board 
of  vessels  so  described,”  it  is  a warranty  that  the 
vessel  is  Swedish,  or  American,  according  to  such 
description. 

A warranty  differs  from  a representation  in  an- 
other respect,  since  the  former  must  be  strict- 
ly and  literally  complied  with  ; whereas  it  is  suf- 
ficient that  the  latter  is  complied  with  equitably 
and  substantially.  It  is  held  that  the  intention  of 
the  parties  in  a warranty,  except  as  to  the  meaning 
of  the  words  used,  is  not  to  be  inquired  into;  the 
insured  has  chosen  to  rest  his  claims  against  the  in- 
surers on  a condition  inserted  in  the  contract,  and 
whether  the  fact  or  engagement  which  is  the  sub- 
ject of  the  warranty,  be  material  to  the  risk  or  not, 
still  he  must  bring  himself  strictly  within  that  con- 
dition. 

A non-cotr.pliance  with  a warranty,  though  it  oc- 
casions no  damage,  and  does  not  change  or  increase 
the  risk,  has  the  effect  of  discharging  the  insurers 
from  their  liability.* 

It  has  even  been  held  that  a temporary  non-com- 
pliance with  a warranty,  by  a defect  which  is  rem- 
edied before  any  loss  happens,  still  discharges  the 
underwriters. f 


* 2 Esp.  615.  7 Term  R.  705. 


f Term  R.  343. 


commencement  and  end  of  risk. 


203 


A compliance  with  a warranty  or  any  other 
agreement  is  dispensed  with,  if  it  be  rendered  un- 
lawful by  a law  enacted  after  the  time  of  making 
the  policy.  But  if  a compliance  be  unlawful  at  the 
time  of  making  the  contract,  the  policy  will  be 
void.* 

OF  THE  TIME  WHEN  THE  RISK  COMMENCES,  AND 
WHEN  IT  ENDS. 

Policies  usually  expressly  declare  that  “the  ad- 
venture shall  begin  upon  the  said  goods  and  mer- 
chandize from  the  loading  thereof  on  board  the 
said  ship , and  so  shall  continue  until  the  said  ship, 
goods,  and  merchandize  shall  have  arrived  at  L ; 
and  upon  the  said  ship  until  she  has  been  moored 
at  anchor  twenty-four  hours  in  good  safety ; and 
upon  the  goods,  till  the  same  be  there  safely  dis- 
charged and  landed .”  From  these  words  it  is  ob- 
vious that  the  insurers  are  not  answerable  for  any 
accident  which  may  happen  to  the  goods,  in  light- 
ers or  boats  going  on  board  previous  to  the  voyage  ; 
yet,  as  the  policy  says  the  risk  shall  continue  till 
the  goods  are  safely  landed,  it  seems  the  insurer 
continues  responsible  for  the  risk  to  be  run  in  car- 
rying the  goods  in  boats  to  the  shore.  If  there  be 
a loss,  however,  in  these  cases,  the  accident  must 
have  happened  while  the  goods  were  in  the  boats 
or  lighters  belonging  to  the  ship  ; and  where  the 

* 1 Salk,  198.  Lord  Raymond,  371,  S.  C. 


2'04  COMMENCEMENT  AND  END  OF  RISK. 

owner  of  the  goods  brings  down  his  own  lighter, 
receives  the  goods  out  of  the  ship,  and  before  they 
reach  land,  an  accident  happens,  whereby  the 
goods  are  damaged,  the  insurer  is  discharged,  al- 
though the  insurance  be  upon  goods  “to  New 
York,  and  till  the  same  be  safely  landed  there .” 

It  has,  however,  been  decided,  that  an  arrival  in 
port,  where  the  vessel  is  at  once  ordered  back  to 
perform  quarantine,  is  not  an  arrival  which  will  dis- 
charge the  insurers,  from  a loss  at  quarantine,  as 
the  arrival  and  mooring  “in  good  safety,”  must  be 
construed  to  mean  an  opportunity  of  loading  and 
unloading. 

In  an  insurance  upon  freight,  the  risk  begins  from 
the  time  the  goods  are  sent  on  board  ; but  if  a ship, 
sailing  under  a contract,  be  lost  on  her  way  to  the 
port  of  lading,  or  at  the  port  of  lading,  before  tak- 
ing in  her  cargo,  the  insurer  is  liable — the  right  to 
freight  having  commenced. 

But  if  the  policy  be  a valued  policy,  and  part  of 
the  cargo  be  on  board  when  such  accident  happens, 
the  rest  being  ready  to  be  shipped,  the  insured  may 
recover  the  whole  amount  of  the  freight.* 

If  the  cargo  be  temporarily  landed,  from  necessi- 
ty, during  the  voyage,  it  is  still  protected  by  the 
policy. 

Where  a vessel  is  bound  to  a West  India  Island, 
as  Jamaica,  and  insured  from  the  port  of  departure 


* Blunt’s  Com.  Dig.  p.  203. 


COMMENCMENT  and  end  of  risk. 


205 


to  Jamaica  generally,  it  is  laid  down  that  the  out- 
ward risk  upon  the  ship  ended  twenty-four  hours 
after  her  arrival  in  the  first  port  in  the  island  to 
which  she  was  destined  ; but  that  the  outward  pol- 
icy upon  goods  continued  till  they  were  landed.* 

In  insurances  upon  East  India  voyages,  the  in- 
surers in  England  have  been  held  liable,  not  only 
for  the  events  which  may  possibly  happen  from  the 
port  of  discharge  to  that  of  delivery,  but  also  for  all 
intermediate  or  country  voyages.  And  this  con- 
struction of  East  India  policies  prevails,  whether 
the  words  of  them  be  large  and  comprehensive, 
such  as,  “ with  liberty  to  touch,  stay  and  trade  at 
any  port  or  place  whatsoever;”  or  restrained  and 
limited,  such  as,  “to  touch  and  stay  at  any  port  or 
place  in  this  voyage.”  If  it  appears,  however,  from 
the  terms  of  the  policy,  that  such  a construction 
was  not  intended  by  the  parties,  then  effect  will  be 
given  to  the  policy  according  to  such  supposed  in- 
tention. 

In  the  unloading  of  goods  there  should  be  no  mi- 
necessary  delay;  but  what  is  unnecessary  delay, 
must  always  depend  upon  circumstances. 

The  risk  on  the  body  of  a ship  is  generally  to 
commence  “ from  her  beginning  to  load  at 
and  so  shall  continue  and  endure  until  the  said  ship 
shall  arrive  at  and  hath  there  been  moored, 

at  anchor,  twenty-four  hours  in  good  safety.”  This 
mode  of  stating  the  commencement  of  the  risk  must 

* 2 Esp.  412. 

IS 


206 


PERILS  AND  RISKS. 


commonly  be  applied  to  insurances  on  ships  outward 
bound ; for,  when  insurance  is  made  on  the  home- 
ward risk,  the  beginning  of  the  adventure  is  some- 
times staled  to  be  “ immediately  from  and  after  her 
arrival  at  the  port  abroad,”  and  at  other  times,  “from 
the  departure and  in  short,  it  is  very  variable, 
depending  upon  the  inclination  of  the  parties. 

OF  THE  VARIOUS  PERILS  AND  RISKS  AGAINST 
WHICH  THE  UNDERWRITER  INSURES. 

The  words  now  used  expressive  of  the  insurer’s 
risk,  are  very  extensive,  including  “perils  of  the 
seas,  men-of-war,  fire,  enemies,  pirates,  rovers, 
thieves,  jettisons,  letters  of  mart  and  counter  mart, 
surprisals.  takings  at  sea,  arrests,  restraints,  and  de- 
tainments of  all  kings,  princes,  and  people,  of  what 
nation,  condition,  or  quality  soever;  barratry  of  the 
master  or  mariners  ; and  all  other  perils,  losses,  and 
misfortunes,  that  have  or  shall  come  to  the  hurt, 
detriment,  damage  of  the  said  goods  and  merchan- 
dize, and  ship,  or  any  part  thereof.” 

The  policy  is  so  general  in  its  terms,  as  to  em- 
brace every  species  of  risk  to  which  ships  and  goods 
are  exposed  from  the  perils  of  the  sea,  and  all  other 
causes  incident  to  maratime  adventures.  The  per- 
ils, however,  may  be  enlarged  or  abridged,  at  the 
pleasure  of  the  parties. 

Where  there  is  no  representation  of  neutrality, 
the  insurer  takes  upon  himself  war  risks.* 

* 1 Caines,  217. 


SUBJECT  INSURED. 


207 


It  is  frequently  the  practice  to  insure  a vessel, 
“ lost  or  not  lost in  which  case,  if  the  ship  should 
be  lost  at  the  time  of  the  insurance,  still  the  under- 
writer, provided  there  be  no  fraud,  is  liable. 

DESCRIPTION  OF  THE  SUBJECT  INSURED. 

It  is  important  to  the  validity  of  the  contract, 
that  the  subject  to  be  insured,  should  be  so  far  de- 
scribed in  the  policy,  as  to  enable  it  to  be  identified. 
As  the  contract  will  embrace  no  other  subject  than 
that  described,  its  validity  will  depend  upon  the 
sufficiency  of  the  description.  A policy  on  hats 
will  not  cover  piece  goods,  nor  will  one  on  oil  and 
barilla , apply  to  soap.  If,  however,  the  description 
designates  the  subject  with  sufficient  certainty,  or 
suggests  the  means  of  doing  it,  a mistake  of  the 
name  of  the  ship,  or  of  other  particulars,  will  not 
defeat  the  contract.* 

If  one  owns  a half  or  any  other  proportion  of  a 
ship  or  quantity  of  goods,  he  may  effect  insurance 
generally  without  specifying  his  interest,  and  he 
will  recover  for  such  interest  as  he  has.  And  a 
mortgagee  may  insure  in  the  same  way,  and  so 
may  a charterer  of  a ship.f 

A lender  on  bottomry  or  respondentia,  must  de- 
scribe his  particular  interest,  or  the  insurance  is  de- 
fective. 

The  general  description,  " goods,  wares,  and 


# Phillips,  64. 


f 1 Caines,  276.  4 Dal.  421. 


208 


SUBJECT  INSURED. 


merchandize ,”  is  most  often  made  use  of  when  the 
description  is  meant  to  apply  to  a mixed  shipment 
of  goods.  These  words  are  in  legal  language  very 
comprehensive,  and  it  would  be  safe  for  the  mer- 
chant always  to  make  use  of  them  when  procuring 
insurance  on  goods  shipped  abroad,  since  by  some 
error,  or  subsequent  arrangement,  goods  might 
otherwise  be  shipped,  not  covered  by  the  policy.* 
Where  the  merchant  is  expecting  goods,  but  is 
not  informed  of  the  name  of  the  ship  on  board  of 
which  they  are  laden,  an  insurance  effected  on 
them  described  to  be  “on  board  of  ship  or  ships  to 
sail,  &c.”  is  sufficient  to  charge  the  underwriters. f 
Where  a policy  was  “on  goods  from  Marseilles 
to  the  West  Judies,  and  back  by  the  Amphitrite  and 
other  vessel,  or  vessels,”  the  assured  had  goods  on 
board  of  different  vessels  to  a greater  amount  than 
was  insured,  and  those  shipped  first,  to  the  amount 
insured,  arrived  safe,  and  a loss  occured  on  those 
subsequently  shipped — it  was  held  that  the  policy 
should  apply  proportionably  to  all  the  goods  com- 
ing within  the  description. 

Profits.  If  the  policy  is  intended  to  cover  the 
profits  on  the  cargo  shipped,  it  must  be  so  express- 
ed, specifically.  But  where  the  master  insured  his 
“property  in  the  brig  Lavina,”  the  court  held  that 
the  word  “ property,”  was  a word  of  very  extensive 
signification,  and  covered  his  commissions  on  the 
cargo  on  board  of  the  ship. 


* Phillips,  66. 


f 2H.  Bl.  343. 


INSURABLE  INTEREST. 


209 


INSURABLE  INTEREST. 

When  a merchant  contemplates  procuring  insur- 
ance on  an y ship,  goods,  or  interest  that  he  con- 
ceives he  has  at  risk,  it  behooves  him  to  first  in- 
quire whether  or  not  he  possesses  an  insurable  in- 
terest in  the  same.  It  is  essential  to  every  contract 
of  insurance  that  the  assured  should  have  an  inter- 
est at  risk.  If  he  has  no  interest,  or  if  his  interest  be 
not  at  risk,  he  can  be  liable  to  no  loss,  and  accord- 
ingly there  is  nothing  against  which  the  insurer 
can  agree  to  indemnify  him. 

It  is  a general  rule,  that,  in  older  to  have  an  in- 
surable interest  in  any  subject,  a person  must  be  li- 
able to  a direct  and  immediate  loss,  by  its  damage 
or  destruction.  Hence  a creditor  may  insure  the 
life  of  a debtor  of  his,  where  the  loss  of  the  debtor’s 
life  would  be  the  loss  of  the  debt. 

Interest  of  the  Mortgagor.  The  owner  of  prop- 
erty mortgaged,  or  in  other  words,  the  mortgagor. 
still  retains  an  insurable  interest  in  it  to  its  full 
value. 

The  assignment  of  a bill  of  lading  passes  the  en- 
tire and  absolute  property  in  the  goods  to  the 
assignee,  and  leaves  the  assignor  no  insurable  in- 
terest, provided  the  assignment  was  made  with  the 
intention  to  pass  the  whole  interest.  But  if  the 
assignment  is  made  merely  for  the  purpose  of  bind- 
ing a consignment  of  goods,  and  the  consignor  still 
18* 


210 


INSURABLE  INTEREST. 


retains  an  interest,  then  the  consignor  may  have 
them  insured.* 

Insurable  interest  of  a Mortgagee.  A person 
to  whom  the  freight  of  a vessel  has  been  mortgaged, 
may  insure  the  legal  interest  on  his  own  account, 
and  also  the  equitable  interest  on  account  of  the 
mortgagor.  The  mortgagee  of  a ship,  or  other 
property,  bas  a legal  interest  in  the  thing,  and  may, 
therefore,  insure;  he  may  represent  the  property  to 
be  his  own,  and  the  policy  may  be  in  his  own 
name.f 

Of  a lender  or  borrower  on  bottomry.  A lender 
on  bottomry,  or  respondentia,  has  an  insurable  in- 
terest to  the  amount  of  the  loan.J 

A borrower  on  bottomry,  or  respondentia,  may 
have  an  insurable  interest  in  the  property  hypothe- 
cated. but  he  can  only  insure  for  the  amount  which 
the  property  is  worth,  over  and  above  the  sum  bor- 
rowed on  the  property  hypothecated.  For  instance, 
if  a ship,  valued  at  $10,000,  be  hypothecated  for 
the  sum  of  $7,000,  then  the  lender  may  procure 
insurance  on  her  for  the  last  mentioned  sum,  and 
the  borrower,  or  owner  of  the  ship,  can  only  pro- 
cure insurance  for  the  surplus  value  of  the  same, 
to  wit — the  sum  of  $3,000.i§> 

Interest  of  a consignee,  factor,  or  agent.  A 
consignee,  factor,  or  agent,  has  an  insurable  inter- 
est in  the  property  consigned  to  him  to  the  amount 

* 1 Esp.  373.  1 Term  R.  445.  f 1 Browne,  267.  2 N.  R.  324. 

+ rhillips’  Ins.  43.  § 2 Caines'  Cases,  110. 

# > 


INSURABLE  INTEREST. 


211 


of  his  lien  upon  the  same.  In  other  words  he  has 
an  insurable  interest  in  the  goods  consigned  to  him 
to  the  amount  of  his  general  balance  against  the 
consignor,  for  to  that  extent  is  his  lien  upon  the 
goods.  He  may  insure  his  interest  ; and  his  inter- 
est is  only  commensurate  with  the  loss  he  may  sus- 
tain by  the  destruction  of  the  property. 

Supercargo.  A supercargo  has  an  insurable  in- 
terest in  the  goods  committed  to  his  charge,  to  the 
amount  of  the  loss  he  would  sustain  should  the 
cargo  be  lost  on  the  voyage. 

Profits.  The  expected  profits  on  a shipment  of 
goods  is  insurable.  In  England  the  law  would 
seem  to  be  t hat  the  insured  can,  in  no  case,  recover 
more  than  the  amount  of  profits  which  he  would 
have  realized,  had  the  goods  arrived ; but  in  this 
country,  that  rule  does  not  seem  to  have  been 
adopted  ; but  under  a valued  policy,  the  estimated 
profits  will  be  recoverable,  and  the  court  will  not 
consider  the  point,  whether  or  not  a profit  would 
have  resulted  from  the  safe  arrival  and  sale  of  the 
goods  at  the  port  of  destination.  The  estimate  in 
the  policy  is  conclusive,  unless  fraud  is  alleged. 

Charterer.  If  the  charterer  of  a ship  contracts 
to  pay  the  owner  for  the  ship  in  case  of  her  loss, 
he  has  an  insurable  interest  in  her,  and  may  effect 
insurance  upon  her  in  his  own  name* 

Interest  in  freight.  The  owner  of  a ship,  navi- 
gated on  his  own  account,  has  an  insurable  interest 


* 3 Mass.  It.  133. 


212 


WHAT  RISKS  MAY  BE  INSURED. 


in  the  freight.  The  risk  commences  as  soon  as  the 
ship  breaks  ground.* 

Re-assurance.  An  insurer  upon  property  has 
such  an  interest  in  it  as  entitles  him  to  procure  a 
re-assurance  upon  the  same,  covering  no  more  than 
the  risk  he  has  previously  assumed. 

The  risk  which  the  insurer  undertakes  to  run 
for  the  insured,  must  involve  no  violation  of  the 
laws  of  the  country,  where  the  contract  is  to  be 
enforced.  Hence  property  employed  in  trade  with 
the  public  enemy,  cannot,  lawfully,  be  protected 
by  insurance.  The  risks  incident  to  the  evasion 
of  the  revenue  laws  are  not  insurable. 

WHAT  RISKS  MAY  BE  INSURED  AGAINST. 

As  a general  rule,  persons  may  be  insured 
against  any  event  by  the  happening  of  which  they 
may  sustain  a pecuniary  damage.  But  this  rule 
has  its  exceptions.  A person  cannot  be  insured 
against  the  loss  which  he  may  incur  by  violating 
the  law.  He  cannot  be  insured  against  the  conse- 
quences of  wrongful  acts. f Neither  can  he  be  in- 
sured against  losses  occasioned  by  his  own  miscon- 
duct. or  culpable  neglect. % It  has  even  been 

thought  that  a court  of  law  could  hardly,  upon 
principle,  sustain  a contract  of  insurance,  by  which 
a party  was  to  be  indemnified  against  losses  aris- 
ing from  his  own  negligence. 

* 2 Cod.  R.  373.  f 5 Taunton,  606.  i 1 Johns.  Cases,  340. 


WHAT  RISKS  MAY  BE  INSURED. 


213 


Upon  the  same  principle  it  has  been  doubted 
whether  a person  may  be  indemnified  against  the 
acts  of  the  government  of  which  he  is  a subject  ; 
but  lord  Ellenborough  said,  “ that  where  the  assur- 
ed was  a British  subject,  he  might  recover  against 
a British  underwriter,  for  a loss  sustained  by  an  act 
of  their  own  government.” 

But  a person  may  be  insured  against  the  conse- 
quences of  violating  the  regulations  of  trade,  and 
the  municipal  laws  of  a foreign  state.*  If  the  ves- 
sel or  cargo  be  seized  and  condemned  in  a foreign 
country  for  violating  their  revenue  laws,  the  insur- 
ers will  be  liable  to  pay  this  loss,  provided  it  ap- 
pears by  the  policy,  and  the  course  of  trade,  that 
this  was  one  of  the  risks  contemplated  by  the  par- 
ties.! 

A valid  contract  may  also  be  made  for  the  pur- 
pose of  indemnifying  the  assured  against  the  ad- 
ministration of  the  laws  of  nations  by  a foreign 
tribunal.  It  has  at  times  been  a common  practice 
in  some  parts  of  the  United  States  to  insert  a pro- 
vision in  a policy  containing  a warranty  of  neutral 
property;  that  the  proof  of  the  property  being  neutral 
should  be,  “ made  only  in  the  United  States.”  By 
this  clause,  the  assured  was  protected  by  his  policy 
from  the  errors  of  foreign  courts  of  law.  The 
character  of  the  property  was  left  to  be  determined, 
as  between  the  assured  and  the  underwriters,  by 
the  courts  of  law  in  the  United  States. 


* 5 Taunton,  37. 


f Valin,  t-  2,  p.  13d, 


214 


LOSS  WITHIN  THE  POLICY. 


WHAT  IS  A LOSS  WITHIN  THE  POLICY. 

It  may,  in  general,  be  said,  that  every  thing 
happening  to  a ship,  in  the  course  of  her  voyage, 
by  the  intermediate  act  of  God,  without  the  inter- 
vention of  human  agency,  is  a peril  of  the  sea. 
Thus,  every  accident  happening  by  the  violence  of 
wind  and  waves ; by  thunder  or  lightning ; by 
driving  against  rocks  ; by  the  stranding  of  the  ship  ; 
or  by  any  other  violence  that  human  prudence 
could  not  foresee,  nor  human  strength  resist,  may 
be  considered  a loss  within  the  meaning  of  such  a 
policy  ; and  the  insurer  must  answer  for  all  dama- 
ges sustained  in  consequence  of  such  accident. 
But  if  a ship  be  driven  by  stress  of  weather  on  an 
enemy’s  coast,  and  be  there  captured,  it  is  a loss  by 
capture , and  not  by  perils  of  the  sea. 

In  order  to  charge  the  underwriter  for  a loss  by 
perils  of  the  sea,  the  ship  must  be  equipped  with 
every  thing  necessary  for  the  voyage  ; she  must  be 
seaicorthy,  and  have  a sufficient  crew,  and  a cap- 
tain and  pilot  of  competent  skill. 

The  ignorance,  and  incompetency  of  the  master 
and  mariners,  is  not  a peril  of  the  sea  against  which 
the  underwriter  undertakes  to  insure.* 

It  is,  however,  difficult,  oftentimes,  to  discrimi- 
nate between  damage  occasioned  by  the  ordi- 


* Phillips,  224. 


LOSS  WITHIN  THE  POLICY.  215 

nary  wear  and  tear  of  the  voyage,  which  falls  upon 
the  owner,  and  that  occasioned  by  a peril  of  the  sea. 

The  loss  of  an  anchor  by  friction  of  the  rocks, 
the  destruction  of  the  ship  by  worms,  the  ordinary 
leakage  of  fluids  in  casks,  the  spontaneous  combus- 
tion of  hemp,  are  all  instances  of  losses  not  within 
the  policy.  Even  damage  done  to  the  ship  by  rats 
has  been  questioned,  as  a loss  for  which  the  insurer 
is  not  answerable. 

If  a ship  has  been  missing,  and  no  intelligence 
received  of  her  within  a reasonable  time  after  she 
sailed,  it  will  be  presumed  that  she  foundered  at 
sea.  * 

There  is  no  precise  time,  after  which,  a vessel 
that  has  not  been  heard  of,  is  to  be  presumed  to  be 
lost ; but  the  presumption  must  depend  upon  the 
circumstances  of  the  case.* 

If  the  vessel  be  obliged  to  put  in  for  repairs,  and 
be  afterwards  lost  on  the  voyage,  the  insurer  is  en- 
titled to  recover  the  partial  loss  from  the  previous 
damage  and  general  average  thereon,  in  addition  to 
the  total  loss.  Provided,  always,  that  the  assured 
has  paid,  or  is  liable  to  pay  for  the  repairs  of  the 
previous  damage,  but  if  money  has  been  raised  on 
bottomry  to  pay  the  same,  the  lender  of  the  money 
will  bear  the  loss  ; such  being  the  condition  of  his 
bond.f 

The  enumerated  perils  of  the  sea,  pirates,  rovers 
and  thieves,  include  the  violent  acts  of  individuals, 


* 2 Johns.  It.  150. 


f 10  Johns.,  487. 


216 


PARTIAL  LOSS  AND  ADJUSTMENT. 


whether  felons,  or  as  a mob,  or  plunderers  from  the 
wreck,  and  also  the  plundering,  or  injury,  commit- 
ted  by  a mutinous  crew.  It  does  not  include  sim- 
ple larceny.* 

OF  PARTIAL  LOSS  AND  ADJUSTMENT. 

Partial  loss  implies  a damage  which  the  ship 
may  have  sustained  in  the  course  of  her  voyage, 
from  any  of  the  perils  mentioned  in  the  policy. 
When  applied  to  the  cargo,  it  means  the  damage 
which  goods  may  have  received,  without  any  fault 
of  the  master,  by  storm,  capture,  stranding,  or  ship- 
wreck ; although  the  whole,  or  the  greater  part 
thereof,  may  arrive  in  port.  These  partial  losses 
fall  upon  the  owners  of  the  property  so  damaged, 
who  must  be  indemnified  by  the  underwriter.  But 
the  usual  stipulation  contained  in  American  policies, 
provides  that  the  underwriters  shall  not  be  liable 
for  partial  losses  except  they  exceed  five  per  cent. 
This  clause,  however,  does  not  undertake  to  ex- 
empt the  underwriters  from  their  liability  to  pay 
general  average  losses  to  less  than  that  amount. 
The  per  centage  is  to  be  reckoned  on  the  valuation 
after  deducting  the  premium. f 

Distinct  and  successive  losses  arising  from  disas- 
ters happening  at  different  times,  cannot  be  added 
together  in  order  to  make  up  the  five  per  cent.J 

The  above  principle  is  applicable,  only,  to  losses 


* Park,  33. 


f 7 Pick.  259. 


t Ibid. 


PARTIAL  LOSS  AND  ADJUSTMENT.  217 

on  the  ship,  and  not  to  losses  upon  the  cargo.  If 
the  aggregate  of  the  losses  upon  the  cargo  exceed 
five  per  cent,  or  whatever  the  exception  may  be, 
the  underwriters  are  liable* 

If,  in  adjusting  the  losses  under  this  memoran- 
dum, the  partial  loss  be  found,  on  survey  and  sale, 
to  have  been  five  per  cent.,  the  insurer  pays-  the 
damages  and  expenses;  if  less  than  five  per  cent., 
the  insurer  pays  nothing.  The  expenses  are  not 
to  be  estimated  in  calculating  the  loss. 

When  we  speak  of  the  underwriters  being  liable 
to  pay,  whether  for  total  or  partial  losses,  it  must 
always  be  understood  that  they  are  liable  only  in 
proportion  to  the  sums  which  they  have  underwrit- 
ten. Thus,  if  a man  underwrites  $100  upon  prop- 
erty valued  at  $500,  and  a total  loss  happen,  he  is 
answerable  for  $100  and  no  more;  that  being  the 
amount  of  his  subscription:  if  only  a partial  loss, 
amounting  to  40  or  50  per  cent,  upon  the  whole 
value,  he  pays  $40  or  $50,  that  being  his  propor- 
tion of  the  loss. 

If  extra  freight  and  extraordinary  expense  be  in- 
curred in  transporting  the  cargo  in  another  vessel, 
it  is  charged  upon  the  insurer.  He  is  also  liable  for 
all  the  labor  and  expense  attendant  upon  the  acci- 
dent which  forces  the  vessel  into  port.  But  these 
items  are  more  properly  termed  particular  average 
than  partial  loss,  although  the  two  are  frequently 


19 


2 Sumner,  p.  378. 


218 


PARTIAL  LOSS  AND  ADJUSTMENT. 


confounded,  and  the  terms  incorrectly  used  as  sy- 
nonymous. 

In  adjusting  partial  losses,  the  insurer  has  noth- 
ing to  do  with  the  state  of  the  markets,  or  with  the 
loss  on  landing  expenses,  or  freight  and  duty  accru- 
ing in  consequence  of  the  deterioration.  The  loss 
is  to  be  adjusted  only  upon  a comparison  of  the 
gross  proceeds  of  the  sound  and  damaged  goods. 
When  a partial  loss  has  occurred,  the  proper  method 
to  ascertain  the  amount  of  the  loss,  is  to  compare 
the  price  which  the  goods  bring  in  a damaged  state, 
with  that  which  like  goods,  being  sound,  would 
bring  at  the  same  time  and  place.  The  difference 
gives  the  ratio  of  loss.  For  illustration,  suppose 
goods  of  the  insurable  value  of  $1,000  are  damaged 
by  perils  of  the  sea,  and  on  arrival  at  the  port  of 
destination,  or  at  the  port  of  distress,  are  sold  for 
$600,  and  that  the  expense  of  surveys  and  extra 
charges  on  the  sale  is  $50.  Let  it  be  further  sup- 
posed that  like  goods,  if  sound,  would  bring  at  the 
same  time  and  place  $1,200.  Upon  these  data, 


the  adjustment  would  be  as  follows: 

Value  of  the  goods,  if  sound,  - $1,200 

Value  of  the  same,  being  damaged,  600 


Loss  50  per  centum,  or,  - - $600 


Then  $1,000,  the  cost,  or  insurable 

value,  losses  50  per  cent.,  or,  $500 

Add  charges  and  expenses,  - - 50 


Claim  on  the  insurers. 


$550 


PARTIAL  LOSS  AND  ADJUSTMENT. 


219 


Where  there  is  no  special  stipulation,  the  insurer 
is  not  liable  for  loss  occasioned  by  ordinary  leak- 
age. When  the  leakage  is  caused  by  an  extraor- 
dinary accident,  the  difference  is  to  be  estimated 
between  that  and  ordinary  leakage,  and  an  allow- 
ance made  for  the  latter. 

If  an  insurer  pay  money  for  a total  loss,  and  in 
fact  it  be  so  at  the  time  of  adjustment,  and  it  after- 
wards turns  out  to  be  only  a partial  loss,  he  shall 
not  recover  back  the  money  so  paid  to  the  insured ; 
for  substantial  justice  is  done  by  putting  him  in 
the  place  of  the  insured,  and  giving  him  all  the  ad- 
vantages that  arise  from  the  salvage.* 

An  adjustment  made  by  the  agent  of  the  in- 
surer does  not  bind  him  so  far  but  that  he  may 
show  it  to  be  erroneous.! 

If  the  goods  be  valued  in  the  policy  at  so  much 
per  pound,  their  weight  must  be  estimated  accord- 
ing to  the  standard  of  the  place  where  the  contract 
was  made.J 

In  an  open  policy  on  the  cargo,  the  invoice  price 
of  goods,  together  with  the  shipping  charges,  and 
premium  of  insurance,  is  the  value  which  the  in- 
sured can  recover  upon  a total  loss,  and  that  with- 
out any  deduction  for  the  drawback  on  exportation. 

By  the  invoice  price  of  goods,  is  meant  the  prime 
cost.  The  insured,  in  an  open  policy,  cannot  charge 
commissions  on  the  purchase  of  goods  by  himself, 
though  he  may  add  the  premium  of  insurance.1^ 

* 4 Burr,  1766.  f 1 Caines,  444.  \ 2 Caines,  30.  § 1 Burr,  249. 


220 


PARTIAL  LOSS  AND  ADJUSTMENT. 


The  jury  may  allow  interest  on  a claim  for 
a partial  loss. 

In  estimating  the  loss  in  case  of  repairs,  the  in- 
surer is  entitled  to  a deduction  of  one-third  new 
for  old,  whether  the  vessel  be  old  or  new.*  This 
applies  also  to  all  the  apparel  of  the  ship,  cordage, 
cables,  &c.,  except  the  anchor. f 

In  estimating  the  expense  of  repairs  made  upon 
a vessel,  for  which  the  underwriters  are  chargeable, 
the  value  of  the  old  materials  is  to  be  first  deduct- 
ed from  the  gross  amount  of  expenses,  and  then 
one-third  new  for  old  is  to  be  deducted  from  the 
balance.  If  the  expense  of  repairs  are  $700  and 
the  old  materials  taken  from  the  vessel,  and  not 
used  again  in  her  repair,  sell  for  $100,  that  leaves 
$600  paid  for  repairs,  to  be  adjusted  between  the 
assured  and  the  underwriter.  If  the  underwriters 
insured  to  the  full  value  of  the  ship,  the}''  must  pay 
two-thirds  of  the  above  sum,  or  $400.  One-third 
new  for  old  always  being  deducted  in  case  of  re- 
pairs.;]: 

It  is  the  duty  of  the  master  to  cause  an  adjust- 
ment, in  case  of  a general  average  loss  upon  ship  or 
cargo,  upon  his  arrival  at  the  destined  port,  and  he 
has  a lien  upon  the  cargo  for  the  amount  of  the 
contribution. 

The  underwriters  are  liable  for  the  casual  split- 
tng  of  sails,  parting  of  cables,  springing  of  masts, 

* 1 Caines,  315.  11  Mass.  K.  253.  11  Johns.  315. 
f Phillips,  371.  J 7 Pick.  259. 


PARTIAL  LOSS  AND  ADJUSTMENT.  221 

loss  of  boats,  breaking  of  the  upper  works,  or  any 
part  of  the  ship  ; damage  by  stranding,  damage  by 
lightning,  or  by  accidental  fires,  loss  by  plunder 
while  the  property  is  for  a time  in  the  hands  of  cap- 
tors  or  pirates,  damage  by  running  foul  of  other 
ships,  or  being  run  foul  of,  or  damage  sustained  by 
a ship  in  an  engagement.  All  casual  and  inevita- 
ble damage  and  loss  that  happens  to  the  subject  is 
particular  average,  or  partial  loss;  all  sacrifices  of 
the  property  on  board,  or  of  the  ship,  or  her  apparel, 
for  the  safety  of  the  remaining  property,  is  general 
average. 

Where  the  insurer  has  underwritten  on  only  a 
portion  of  the  value  of  the  ship  or  goods,  he  con- 
tributes towards  a partial  loss  in  the  same  propor- 
tion ; and  the  value  of  the  property,  whether  it  be 
the  ship  or  the  goods,  is  to  be  estimated  at  the  time 
of  the  commencement  of  the  risk. 

Freight.  A partial  loss  on  freight  is  occasioned 
by  loss  of  the  ship  after  a part  of  the  voyage  is  per- 
formed, which  makes  it  necessary  to  hire  another 
ship  to  carry  on  the  cargo  to  the  port  of  destination, 
in  order  to  earn  freight  ; or  a loss  of  a part  of  the 
cargo,  whereby  the  ship  is  prevented  from  earning 
a part  of  her  freight.* 

Where,  on  account  of  the  perils  insured  against, 
only  freight  pro.  rata  is  eared,  this  is  a case  of  par- 
tial loss  upon  that  interest. 

* 12  Johns.  107. 


19* 


222 


PARTIAL  LOSS  AND  ADJUSTMENT. 


If  the  goods  arrive  in  bulk,  though,  in  conse- 
quence of  sea  damage  or  otherwise,  they  are  of  no 
value,  still  the  whole  freight  is  due,  and  accordingly 
the  assured  on  freight  has  no  claim  for  any  loss. 
In  case  of  the  sale  of  the  goods  at  an  intermediate 
port,  however,  the  whole  freight  is  usually  allowed, 
and  in  most  instances  there  can  be  no  question  of 
its  being  due,  as  it  cannot  appear  that  the  goods 
might  not  have  arrived  at  the  port  of  destination  in 
bulk. 

The  expenses  attending  a detention  by  embargo 
or  other  cause,  do  not  constitute  a particular  av- 
erage on  freight. 

There  can  be  no  difficulty  in  adjusting  a partial 
loss  on  freight,  since  the  whole  amount  of  interest 
is  definitely  fixed  by  the  bills  of  lading  or  charter 
party,  or,  in  case  of  the  ship  and  cargo  belonging 
to  the  assured,  the  amount  is  determined  by  esti- 
mation, according  to  the  current  rate  of  freight  for 
the  same  voyage,  and  the  whole  amount  of  the  in- 
terest, and  that  of  the  loss  being  ascertained,  the 
rate  per  cent,  of  the  loss  is  readily  found. 

On  Goods.  In  case  of  the  destruction  of  a part 
of  the  goods,  the  underwriter  pays  their  value  ac- 
cording to  the  invoice  or  valuation  ; and  the  rule  is 
the  same  in  case  of  the  loss  of  half  of  the  value  of 
the  goods  by  sea  damage,  or  otherwise,  though  they 
remain  in  bulk. 

A particular  average  is  usually  adjusted  at  the 
port  of  delivery.  If  the  loss  is  occasioned  by  the 


PARTIAL  LOSS  AND  ADJUSTMENT. 


223 


entire  destruction  of  a part  of  the  goods  insured, 
the  insurer  is  liable  to  pay  for  them,  as  far  as  they 
are  covered  by  the  policy,  at  the  price  at  which 
they  are  insured,  and  such  a loss  is  easily  adjusted, 
there  being  no  difference  of  opinion  or  practice  re- 
specting it. 

If  the  particular  average  is  occasioned  by  dam- 
age to  the  goods,  and,  in  consequence  of  the  dam- 
age, the  goods  sell  for  only  half  what  the  same 
goods  would  have  sold  for  if  sound,  the  direct  loss 
by  the  damage  is  fifty  per  cent.,  and  the  insurer 
must  pay,  not  half  of  the  price  of  sound  goods 
at  that  market,  but  half  of  the  value  at  which  he 
insured  the  goods. 

If  the  goods  arrive  in  a state  damaged  to  half 
their  value,  still  the  same  freight  is  payable.  It 
has  been  a question  of  very  grave  discussion,  wheth- 
er, or  not,  the  loss  thus  sustained  by  the  merchant, 
in  paying  freight,  on  say  $1,000  worth  of  goods 
when  $500  worth  only  arrive,  should  be  borne  by 
him  or  by  the  underwriters.  It  is  now  definitely 
settled  that  the  insurers  are  not  liable  for  this  loss, 
nor  for  losses  arising  from  the  port  charges,  duties, 
&c,  upon  such  damaged  goods.* 


* 5 Johns.  219. 


224 


MARITIME  LOANS. 


MARITIME  LOANS. 

Bottomry  and  Respondentia. 

Bottomry  and  respondentia  are  both  maritime 
loans.  The  former,  as  its  name  im  ies,  is  a loan 
upon  the  bottom  of  the  ship,  its  tackle , apparel , 
and  freight.  Respondentia  is  a loan  effected  upon 
the  cargo.  The  subject  pledged  on  either  of  such 
loans  is  said  to  be  hypothecated. 

These  loans  are  of  very  great  antiquity,  having 
been  in  use  among  the  ancient  Rhodians,  and  from 
them  adopted  by  the  Romans,  and  by  almost  all 
maritime  nations  since  their  day.  The  object  of 
hypothecation  bonds  is  to  procure  the  necessary 
supplies  for  ships  which  happen  to  be  in  distress  in 
foreign  ports,  where  the  master  and  owners  are 
without  credit,  and  in  cases  in  which,  if  assistance 
could  not  be  procured  by  means  of  such  instru- 
ments, the  vessels  and  their  cargoes  must  be  left  to 
perish.  The  owner  may  also  make  use  of  such 
loans  in  a home  port,  to  procure  funds  to  purchase  a 
cargo  for  the  ship,  or  to  furnish  supplies,  and  in 
general  to  effect  any  beneficial  purpose  towards  the 
ship  or  cargo.*  So  a valid  hypothecation  may  be 
made  by  the  owner,  for  the  purpose  of  raising 
money,  not  for  the  use  of  the  ship  or  voyage , if  it 
be  not  a mere  cover  for  an  usurious  contract.  If 


* Kent,  3 vol.  353. 


MARITIME  LOANS. 


225 


the  risk  of  the  voyage  be  substantially  taken,  and 
there  be  no  gaming  or  fraud  in  the  matter,  the  con- 
tract may  be  sustained.* 

The  effect  of  a bottomry  bond  is  to  bind  the 
owner  for  the  repayment  of  the  money  loaned,  and 
the  agreed  maritime  interest  thereon,  in  the  event 
that  the  vessel  arrives,  in  good  safety,  at  the  port 
designated  ; but  if  the  ship  be  lost  by  a peril  of  the 
sea,  the  lender  has  no  claim  upon  the  borrower  for 
any  part  of  the  loan,  except  what  may  come  to 
the  borrower’s  hands  as  salvage  of  the  wrecked 
property.  The  lender  on  bottomry  becomes,  upon 
the  wrecking  of  the  property,  its  legal  owner,  and 
entitled  to  the  proceeds.  Hence  it  will  be  seen 
that  the  lender  on  bottomry  is  an  insurer  in  a cer- 
tain sense.  He  takes  the  risk  upon  himself  of  her 
safe  arrival,  and  stakes  his  money  upon  the  hazard. 
He  is  therefore  permitted  and  authorized  to  demand 
and  receive  an  extraordinary  rate  of  interest.  Where 
the  contract  is  made  by  the  master  in  a foreign  port, 
when  in  distress,  and  his  peculiar  circumstances  seem 
to  have  been  taken  advantage  of  for  the  purpose  of 
extorting  an  exorbitant  rate  of  interest,  maritime 
courts  sometimes  interfere  and  moderate  the  exorbi- 
tancy of  the  charge.  But  this  is  not  often  done, 
since  it  is  considered  of  great  importance  to  com- 
mercial transactions,  that  these  loans  should  be  up- 
held and  enforced  with  honorable  fidelity. f 


* 1 Petprs,  436. 


f 3 Mason,  260. 


226 


MARITIME  LOANS. 


A respondentia  bond  is  a loan  upon  a pledge  of 
the  cargo.  Both  bottomry  and  respondentia  par- 
take of  the  nature  of  a mortgage,  and  both  vessel 
and  cargo  may  be  hypothecated  in  one  instrument. 
Respondentia,  or  a pledge  of  the  cargo,  is,  general- 
ly, only  a personal  obligation  on  the  borrower,  and 
is  not  a specific  lien  upon  the  goods,  unless  there  is 
an  express  stipulation  to  that  effect  in  the  bond. 
The  condition  of  the  loan  is  the  same  as  on  bottom- 
ry, the  safe  arrival  of  the  subject  hypothecated,  and 
the  entire  principal,  as  well  as  interest,  is  at  the 
risk  of  the  lender,  during  the  voyage.* 

After  a bottomry  bond  is  once  rightfully  made, 
every  sale  or  transfer  of  the  vessel,  although  the 
purchaser  takes  without  notice  of  the  bond,  is  sub- 
ject to  the  bond,  and  the  vessel  is  liable  on  the  hy- 
pothecation to  the  lender.  This  is  the  case,  wheth- 
er the  hypothecation  be  made  by  the  owner  on  a 
home  shore,  or  by  the  master  on  a foreign  shore. 
It  is  not  necessary  that  the  bond  should  be  record- 
ed.! It  ]S  necessary,  however,  that  there  should 
be  no  laches  on  the  part  of  the  lender,  if  he  would 
hold  the  ship  against  a bona  fide  purchaser,  without 
notice.  He  should  libel  the  vessel  within  a reason- 
able time  after  her  arrival  from  the  voyage  agreed 
upon.  A bottomry  bond  may  be  upon  time,  as 
well  as  for  a specific  voyage. t If  the  owner,  after 
obtaining  advances  upon  bottomry,  sell  the  vessel, 
or  break  up  the  voyage,  the  contract  of  the  lender  is 


* Kent,  3 vol.  355. 


+ 2 Sumner,  157.  f Ibid. 


MARITIME  LOANS. 


227 


at  an  end,  and  he  may  proceed  immediately  against 
the  borrower,  or  the  vessel,  to  obtain  payment.* 

In  general,  as  soon  as  the  risk  ceases,  either  by 
the  ship’s  safe  arrival,  the  expiration  of  the  term 
for  which  the  money  was  loaned,  or  by  the  break- 
ing up  of  the  voyage,  the  marine  interest  ceases, 
and  the  debt  becomes  absolute  against  the  lender. f 
After  the  debt  has  once  become  absolute  against 
the  owner  by  the  safe  arrival  of  the  vessel,  or  any 
other  cause,  legal  interest  begins  to  run  upon  the 
amount  of  principal  and  interest  then  due,  and  the 
marine  interest  ceases. % 

The  lender  is  only  answerable  for  losses  which 
happen  within  the  time  and  place  of  the  risk,  as 
specified  in  the  contract.  Therefore  if  the  ship  de- 
viate, without  necessity,  from  the  voyage  described 
in  the  bond,  the  lender  will  not  be  liable,  any  more 
than  an  insurer,  to  any  loss  that  may  afterwards 
happen.^ 

The  last  bottomry  bond,  like  the  last  will,  takes 
precedence,  provided  it  be  given  for  the  purpose  of 
repairing  a disaster  sustained  by  the  ship,  after  the 
execution  of  the  first  bond.  It  is  then  really  made 
for  the  benefit  of  the  previous  bottomry  lender. U 
The  lender  on  bottomry,  does  not,  as  does  an  in- 
surer, assume  the  risk  of  barratry,  or  loss  by  the  fraud 
or  misconduct  of  the  borrower  or  his  agents.  The 

* 2 Sumner,  157.  f 2 Marshall  In.  b.  2.  ch.  4,  p.  750,  et.  seq. 

f 3 Mason,  268.  § 2 Marshall  In.  b.  2.  ch.  5,  p.  756, 

2 Sumner,  157. 


• 228 


MARITIME  LOAJVS. 


lender  does  not  bear  losses  arising  from  the  unsea- 
worthiness of  the  vessel,  or  from  unjustifiable  de- 
viation, or  from  the  fault  of  the  borrower,  or 
the  inherent  infirmity  of  the  cargo.  Nor  does  he 
run  the  risk  of  the  goods  shipped  on  board  another 
ship  without  necessity.* 

A bottomry  bond,  when  made  in  a foreign  port 
by  one  of  the  owners,  should,  also,  it  would  seem, 
be  signed  by  the  master. 

A bottomry  bond  will  take  precedence  of  a prior 
mortgage  of  the  vessel,  if  the  mortgagor  was  allow- 
ed to  remain  in  possession.! 

If  the  master  should  take  up  more  money  on  bot- 
tomry, than  the  exigencies  of  the  vessel  required, 
still  the  bond  would  be  good  for  the  sum  actually 
expended  upon  the  vessel.  A bond  may  be  good 
for  a part,  and  bad  for  a part.J 

By  the  maritime  law  of  the  United  States,  the 
master  cannot  pledge  the  ship  by  bottomry  bond, 
and  also  pledge  the  personal  credit  of  the  owners.^ 
The  master  cannot  pledge  the  ship  by  bottomry 
bond  for  repairs,  when  one  or  more  of  the  part  own- 
ers are  present  where  the  repairs  are  made. 

The  master  cannot  hypothecate  for  an  existing 
debt ; but  only  for  advances  for  a purpose  necessary 
to  complete  his  voyage,  made  at  the  time  the  ne- 
cessity existed.  || 

The  lender  of  money  on  bottomry  must  inform 

* Kent,  3 vol.  360.  f 1 Paine  R.  671. 

$ 8 Peters,  R.  538.  § Ibid.  ||  Wash.  R.  293. 


MARITIME  LOANS. 


229 


himself  of  the  ship’s  necessity  for  the  loan  ; and  if 
he  does  not,  and  it  appears  that  part  of  the  sum  ad- 
vanced was  not  applied.,  or  was  not  necessary  to  the 
repair  of  the  vessel,  the  lender  loses  his  lien  on 
the  vessel  for  the  amount  of  the  loan  not  applied, 
or  which  was  not  necessary,  but  the  bond  is  good 
for  the  remainder.* 

The  lender  on  bottomry  is  bound  to  exercise 
reasonable  diligence,  in  order  to  ascertain  whether 
such  supplies  and  repairs  are  necessary  and  proper. 
He  is  not  bound,  however,  to  show  there  was  a 
positive  necessity.  It  is  sufficient  that  there  was 
an  apparent  necessity,  so  far  as  the  lender  is  able, 
upon  due  inquiry  and  due  diligence,  to  ascertain 
the  facts. f 

A regular  survey,  by  competent  and  skillful  per- 
sons, and  repairs  made  in  pursuance  of  their  recom- 
mendation, is  prima  facie  evidence  of  the  propriety 
of  making  the  repairs,  to  justify  the  master  and 
lender  on  bottomry.J 

The  money  should  be  advanced  solely  on  the 
faith  of  the  hypothecation,  and  not  on  any  personal 
credit,  in  a foreign  port,  and  in  such  distress  that 
the  voyage  could  not  be  completed  without  it.$ 

The  master  of  a ship,  in  a foreign  port,  has  au- 
thority to  procure  all  supplies,  and  repairs,  necessa- 
ry for  the  safety  of  the  ship,  and  the  due  perform- 
ance of  the  voyage.  || 

* Bee,  R.  157.  f Ship  Fortitude.  3 Sumner, 

t Ibid.  § Ibid.  120.  ||  Ibid. 

20 


230 


DEVIATION  BY  THE  MASTER. 


This  authority  is  not  confined  to  such  supplies, 
and  repairs,  as  are  absolutely,  or  indispensably 
necessary;  but  includes  all  such  as  are  reasonably 
fit  and  proper  for  the  ship  and  the  voyage  * 

Where  such  supplies  and  repairs  are  reasonably 
fit  and  proper,  the  master,  if  he  has  not  suitable 
funds,  or  cannot  obtain  money  on  the  personal 
credit  of  the  owner,  may  take  it  upon  bottomry. f 
The  master,  before  taking  up  money  on  bottomry, 
should  assure  himself  that  there  is  no  other  way  in 
which  he  can  raise  the  necessary  funds.  He  ought 
first,  certainly,  to  apply  to  the  consignee  for  funds 
and  direction,  and  this,  too,  even  if  the  consignee 
resides  at  another  port,  distant  from  that  occupied 
by  the  vessel.  If  the  distance  be  great,  so  as  to 
make  it  extremely  difficult  to  communicate  with 
him,  the  master  may  proceed  without  his  advice. 

The  lender  on  bottomry  is  not  bound  to  see  to 
the  due  application  of  the  money  ; but  thel'e  must  be 
no  collusion,  and  he  must  have  reasonable  ground 
for  believing  that  the  money  is  fairly  borrowed. J 

OF  DEVIATION  BY  THE  MASTER. 

Deviation  means  a voluntary  devarture,  without 
necessity , or  any  reasonable  cause,  from  the  regu- 
lar, and  usual  course  of  the  specific  voyage  insur- 
ed ; or  it  is  a varying  of  the  voyage  ; and  it  matters 
not  whether  the  risk  is  increased  or  diminished 
* Ship  Fortitude.  3 Sumner.  f Ibid.  $ 1 Dodson  R.  461. 


DEVIATION  BY  THE  MASTER. 


231 


thereby ; the  effect  in  either  case  being  the  same — 
to  terminate  the  responsibility  of  the  underwriters. 
It  is  necessary  to  insert  in  every  policy  of  insur- 
ance, the  place  of  the  ship’s  departure,  and  also  of 
her  destination,  unless  she  be  insured  on  time. 
Hence  it  is  a condition  on  the  part  of  the  insured, 
that  the  ship  shall  pursue  the  most  direct  course  of 
which  the  nature  of  the  case  will  admit,  to  arrive 
at  the  destined  port.  If  this  be  not  done,  and  there 
be  no  special  agreement  to  allow  the  ship  to  go  to 
certain  places  out  of  the  usual  track,  or  if  there  be 
no  just  cause  assigned  for  such  a deviation,  the  un- 
derwriter is  no  longer  bound  by  his  contract.  Nor 
is  it  at  all  material  whether  the  loss  be,  or  be  not, 
actually  in  consequence  of  the  deviation ; for  the 
insurers  are  in  no  case  answerable  for  any  subse- 
quent loss,  in  whatever  place  it  happens,  or  to 
whatever  cause  attributed.  Neither  does  it  make 
any  difference  whether  the  insurers  were,  or  were 
not,  consenting  to  the  deviation.* 

The  meaning  of  those  who  assume  the  risk  of 
the  voyage  is  always  presumed  to  be,  that  the  voy- 
age is  to  be  pursued  in  the  most  direct  and  safe 
course,  and  the  adventure  conducted,  in  general,  in 
the  most  expeditions  manner,  as  far  as  is  consistent 
with  safety ; and  if  there  be  any  departure  from 
such  course  or  mode  of  conducting  the  adventure, 
whereby  the  risks  insured  against  are  varied , or  in- 
creased, it  behooves  the  assured  to  justify  such  de~ 
* Kent,  vol.  3,  313. 


232 


DEVIATION  BY  THE  MASTER. 


parture,  by  showing  either  a usage  in  that  respect, 
or  a reasonable  necessity  for  it. 

A deviation  is,  therefore,  not  merely  a going  out 
of  the  direct  or  usual  course  of  the  voyage,  but  it 
comprehends  unusual  and  unnecessary  delay.  Any 
thing  that  increases,  or  changes  the  risks  insured 
against,  in  the  policy,  is  a deviation.* 

The  shortness  of  the  time,  or  the  distance,  makes 
no  difference  as  to  its  effect  upon  the  contract. 

If  the  master  of  a vessel  puts  into  a port  not 
usual,  or  stays  an  unusual  time,  it  is  a deviation 
and  discharges  the  insurer*! 

If  there  be  liberty  granted  by  the  policy  to 
touch,  or  to  touch  and  stay  at  an  intermediate  port 
on  the  passage,  the  better  opinion  now  is,  that  the 
insured  may  trade  there,  when  consistent  with  the 
object  and  furtherance  of  the  adventure,  by  break- 
ing bulk,  or  by  discharging  and  taking  in  cargo, 
provided  it  produces  no  unnecessary  delay,  nor 
enhances,  or  varies  the  risk.J 

The  above  privilege  is  so  circumscribed  and 
guarded  that  no  prudent  master  would  exercise  the 
rights  there  conceded  unless  the  circumstances 
would  fully  and  clearly  justify  it. 

Unless  there  be  some  usage  proved,  or  some 
special  facts  to  vary  the  general  rule,  the  party  in- 
sured must  go  to  the  several  places  mentioned  in 
the  policy,  in  the  order  in  which  they  are  named ; 
to  depart  from  this  course  is  a deviation.  If  they 
# Kent,  vol.  3,  p.  315.  f Ibid,  f;  5 Pick.  R.  51.  2 Johns.  R.  264- 


DEVIATION  BY  THE  MASTER. 


233 


are  not  specifically  named,  then  the  insured  is  to 
touch  at  them  in  their  geographical  order.* 

The  master,  however,  may  omit  to  touch  at  any 
of  the  ports  first  named,  and  go  immediately  to  a 
port  mentioned  later  in  the  policy ; but  he  cannot 
afterwards  visit  the  previous  named  ports,  in  the 
course  of  the  same  voyage,  without  avoiding  the 
policy.f 

For  instance,  if  permission  be  given  in  the  poli- 
cy, for  the  ship  to  touch  at  A.  B.  and  C., — the  mas- 
ter may,  if  he  chooses,  run  direct  to  B.,  and  if  he 
fails  to  find  a market  there,  may  proceed  to  C. — but 
cannot  go  back  to  A.  without  deviating-! 

Where  the  insured  have  permission  in  their  poli- 
cy to  touch  at  certain  ports,  the  permission  is  to 
touch  for  the  purposes  of  the  voyage,  and  not  for 
other,  and  distinct  purposes. 

Liberty  to  touch  at  a port  named  in  the  policy, 
will  not  authorize  the  touching  at  another,  although 
it  is  no  more  out  of  the  usual  course  of  the  voy- 
age. $ 

Where  a vessel  that  was  insured  from  St.  Ubes 
to  her  port  of  discharge  in  the  United  States,  on 
her  arrival  at  a port  in  the  United  States,  waited 
there  for  instructions  from  the  owner,  and  after- 
wards proceeded  to  her  port  of  discharge,  it  was 
held  to  be  no  deviation. 

If  the  insurance  be  at  and  from  a place, — any 
unusual,  and  unnecessary  delay  in  commencing  the 

* 5 Pick.  89.  f Ibid.  $ Ibid.  $ 7 Bro.  P.  C.  459. 

20* 


234 


DEVIATION  BY  THE  MASTER. 


voyage,  after  the  risk  commences,  is  a deviation. 
So  where  the  policy  is  on  goods  until  landed , — any 
unnecessary  and  voluntary  delay  to  land  them  is  a 
deviation. 

The  cause  for  which  vessels  most  frequently  go 
out  of  the  regular  course  of  the  voyage  is,  to  put 
into  the  nearest  convenient  port  to  refit  after  some 
disaster.  This  is  not  a deviation,  such  as  to  dis- 
charge the  underwriters,  provided  the  master  seeks 
his  port  of  distress,  directly  and  expeditiously. 

A vessel  which  has  lost  a part  of  her  crew,  or  of 
which  the  crew  is  disabled  by  sickness,  may  go 
out  of  the  course  of  the  voyage  to  obtain  seamen. 

A vessel  may  go  out  of  the  usual  course  of  the 
voyage,  or  may  delay,  for  the  purpose  of  avoiding 
capture  or  any  impending  peril  that  is  insured 
against. 

It  has  been  held  that  the  master  may  go  out  of 
the  usual  course  of  the  voyage,  to  procure  intel- 
ligence and  advice,  when  any  extraordinary  cir- 
cumstance makes  it  very  difficult  to  determine  in 
what  manner  to  proceed. 

-Delay,  or  going  out  of  the  course  of  the  voyage, 
to  succor  those  who  are  in  distress,  has  been  held 
not  to  be  a deviation.  The  principle,  founded  as  it 
so  clearly  is,  upon  principles  of  humanity,  is  not 
likely  to  be  called  in  question,  either  by  insurers  or 
insured.* 

But  it  seems  that  delay,  or  the  going  out  of  the 
course  of  the  voyage  to  save  property,  is  a deviation.f 


* Kent,  3 vol.  313. 


f Kent,  3 vol.  313. 


DEVIATION  BY  THE  MASTER. 


235 


A vessel  may  go  out  of  her  regular  course  by 
stress  of  weather.  Upon  this  point  the  rule  is,  that 
whenever  a ship,  in  order  to  escape  a storm,  goes 
out  of  the  direct  course  of  the  voyage,  or  when  in 
due  course  she  is  driven  out  of  it  by  stress  of 
weather,  it  is  no  deviation. 

She  need  not  return  to  the  point  from  which  she 
was  driven,  but  may  pursue  her  course  to  her  port 
of  destination,  by  the  usual  route  from  the  point  to 
which  she  has  been  driven. 

A deviation  may  be  justified,  if  done  to  avoid  an 
enemy  or  seek  for  convoy ; because  it  is  in  truth 
no  deviation  to  go  out  of  the  course  of  a voyage,  to 
avoid  danger,  or  to  obtain  protection. 

If  by  the  usage  pf  a certain  trade,  it  is  customary 
to  stop  at  certain  places  lying  out  of  the  direct 
course  from  A.  to  B.,  it  is  not  a deviation  to  stop 
there,  because  it  is  part  of  the  voyage  ; but  in 
order  to  justify  the  master,  there  must  be  a precise, 
clear , and  established  usage  upon  the  subject,  not 
depending  upon  one  or  two  loose  and  vague  in- 
stances. 

The  effect  of  the  master’s  deviating  from  the 
voyage  insured  upon,  is,  to  discharge  the  under- 
writers from  the  time  of  such  deviation,  and  noth- 
ing subsequent  can  restore  their  obligation.* 

Any  unnecessary  delay  during  the  voyage, 
whether  at  sea  or  in  port , is  tantamount  to  a devi- 
ation, and  followed  by  the  same  consequences.! 

And  the  shortness  of  the  time  of  a delay,  or  the 
* 13  Mass.  R.  68.  7 do.  349.  * 9 Mass.  E.  436. 


236 


DEVIATION  BY  THE  MASTER. 


distance  of  a deviation,  makes  no  difference  as  to 
its  effect  on  the  contract,  whether  for  one  hour,  or 
one  month,  or  for  one  mile,  or  one  hundred  miles  ; 
if  it  be  voluntary  and  without  necessity,  it  puts  an 
end  to  the  contract,  and  the  underwriters  are  dis- 
charged.* 

If  the  master  voluntarily  deviates  from  the  usual 
route,  and  the  intention  so  to  do  is  not  communi- 
cated to  the  underwriters,  or  if  the  deviation  be  a 
mistake  of  the  captain,  arising  from  want  of  ordi- 
nary skill  or  information,  the  underwriters  will  be 
discharged.! 

In  the  ca'se  of  contraband  trade,  the  master  on 
discovering  great  danger  in  pursuing  his  voyage,  as 
by  learning  that  the  port  is  blockaded,  may,  (as  in 
case  of  pirates  in  the  way,)  depart  from  his  voyage, 
seek  an  asylum  in  the  nearest  safe  port,  or  even,  if 
more  convenient,  return  to  his  original  port  and 
wait  until  the  blockade  is  raised,  or  the  blockading 
fleet  is  dispersed,  and  then  may  continue  his  voy- 
age without  being  chargeable  with  deviation-! 

If,  however,  the  master,  on  learning  his  danger, 
abandon  the  voyage  insured,  and  either  return 
home  or  proceed  on  another  voyage,  this  will  be  a 
deviation  by  which  the  underwriters  will  be  dis- 
charged.1^ 

If  it  be  the  usage  in  making  a voyage  to  any 
particular  place,  on  a particular  route,  to  stop  at  a 
certain  intermediate  port  ; and  there  be  a necessity 

* 9 Mass.  436.  f 8 Mass.  308.  ? 6 Mass.  122.  § 7 Mass.  349. 


BARRATRY. 


23T 


for  it,  on  account  of  provisions,  or  water,  without 
any  fault  of  the  master,  the  act  will  not  be  a devi- 
ation.* 


BARRATRY. 

Barratry  has  been  defined  to  be,  every  species 
of  fraud  or  knavery  in  the  master  or  mariners,  by 
which  the  freighters  or  owners  are  injured.  Mere 
negligence  and  inattention  to  their  duty  on  the  part 
of  the  master  or  mariners,  is  not  barratry.  Chief 
Justice  Lee  said,  “that  to  make  barratry  it  must  be 
something  of  a criminal  nature,  as  well  as  a breach 
of  contract  ; such  as  running  away  with  the  ship, 
sinking  or  deserting  her,  embezzling  the  cargo,  or 
carrying  her  a different  course  from  that  ordered. 
It  includes  every  breach  of  trust  with  dishonest 
views.”  From  a review  of  the  decisions  on  this 
subject,  it  appears  that  any  act  of  the  master,  or  of 
■the  mariners,  which  is  of  a criminal  nature , or 
which  is  grossly  negligent , tending  to  their  own 
benefit,  and  to  the  prejudice  of  the  owners  of  the 
ship,  without  their  consent  or  privity,  is  barratry.! 

In  the  contract  of  insurance  under  the  usual 
form  of  the  policy,  and  where  there  is  no  express 
words  limiting  it,  the  insured  are  bound  to  furnish 
a tight,  staunch,  strong,  seaworthy  vessel,  a capa- 
ble master  and  a competent  crew  ; and  the  insurers 
are  responsible  for  all  disasters  which  the  foresight 


* 13  Mass.  R.  68. 


f Phillips  In.  230, 


238 


BARRATRY. 


of  the  insured  could  not  have  guarded  against. 
Among  the  disasters  which  the  insured  cannot 
guard  against,  is  reckoned  the  barratry,  or  fraud 
of  the  master  and  mariners.  This,  therefore,  is 
covered  by  the  policy. 

To  constitute  barratry,  it  must  be  without  the 
knowledge  or  consent  of  the  owners. 

It  is  not  necessary,  in  order  to  entitle  the  insured 
to  recover  for  barratry,  that  the  loss  should  happen 
in  the  act  of  barratry.  It  is  immaterial  whether  it 
take  place  during  the  fraudulent  voyage,  or  after 
the  ship  has  returned  to  the  regular  course;  for 
the  moment  the  ship  is  carried  from  its  right  track 
with  an  evil  intent , barratry  is  committed. 

But  the  loss  in  consequence  of  the  act  of  barra- 
try, must  happen  during  the  voyage  insured,  and 
within  the  time  limited  by  the  policy:  for  if  the 
captain  be  guilty  of  barratry  by  smuggling,  and  the 
ship  afterwards  arrive  at  the  port  of  destination, 
and  be  there  moored  twenty-four  hours  in  safety, 
the  underwriters  are  not  liable,  if,  after  this,  she 
should  be  seized  for  that  act  of  smuggling. 

The  attempt,  by  the  master,  to  evade  the  duties 
in  a foreign  port,  whereby  the  vessel  is  exposed  to 
forfeiture,  is  held  to  be  barratry.* 

Trading  with  an  enemy  without  the  leave  of 
the  owner  : and  for  for  a neutral  to  resist  search, 
are  acts  of  barratry.! 

Breach  of  an  embargo,  is  an  act  of  barratry  in 
the  master. 

* 2 Str.  1 173.  Phillips’  In.  231.  t 8 East.  126. 


TOTAL  LOSS  AND  ABANDONMENT. 


239 


OF  TOTAL  LOSS  AND  ABANDONMENT. 

As  insurance  is- for  the  purpose  of  protecting  the 
merchant  from  severe  and  heavy  losses  arising 
from  shipwreck  or  disaster,  so  abandonment  is  in- 
tended to  restore  to  the  owner,  without  delay,  his 
capital,  and  thereby  enable  him  to  engage  in  some 
new  mercantile  adventure.  Long  interruption  to  a 
voyage,  and  uncertain  hopes  of  recovery,  would, 
often,  be  ruinous  to  the  business  of  the  merchant  ; 
and  therefore  if  the  object  of  the  voyage  be  lost,  or 
not  worth  pursuing  by  reason  of  a peril  insured 
against,  or  if  the  cargo  be  so  damaged  as  to  be  of 
little  or  no  value,  the  insured  may  abandon  the 
subject  to  the  underwriter  and  call  upon  him  to 
pay  a total  loss.  When  an  abandonment  has  been 
made  by  the  owners  to  the  underwriters,  the  latter 
stand  in  the  place  of  the  owners  and  take  the  sub- 
ject to  themselves,  with  all  the  chances  of  recovery 
and  indemnity.  If  the  ship  should  be  recovered, 
and  proceed,  and  make  a prosperous  voyage,  the  in- 
surer, as  owner,  would  reap  the  profit. 

Under  the  law  of  abandonment,  as  now  settled, 
the  owner  is  not  subject  to  an  interruption  of  his 
business,  as  disastrous,  nearly,  as  the  disaster  itself ; 
but  may  disentangle  himself  from  the  fragments  of 
a broken  voyage,  by  throwing  upon  the  underwri- 
ters the  burthen  of  collecting  the  scattered  rem- 
nants, and  of  providing  for  them  a suitable  market. 


240 


TOTAL  LOSS  AND  ABANDONMENT. 


This  leaves  the  merchant  free  to  pursue  the  regular 
train  of  his  affairs  without  those  serious  interrup- 
tions so  perplexing  to  the  man  of  business. 

A total  loss  is  one  by  which  the  underwriter  is 
liable  to  pay  for  as  much  of  the  subject  as  he  in- 
sures, at  its  value  in  the  policy.  If  the  value  of 
the  property  is  equal  to,  or  greater  than  the  amount 
insured  upon  it,  then  the  underwriter,  in  case  of  a 
total  loss,  must  pay  the  full  amount  insured.  But 
if  the  amount  insured  exceeds  the  value  of  the 
property  lost,  then  the  underwriter  is  liable  only 
for  a sum  equal  to  the  actual  value  of  the  subject 
insured,  or  the  value  stipulated  in  the  policy,  if  the 
subject  be  valued  in  the  policy.  But  in  an  open 
policy,  if  the  sum  insured  is  $1,000,  and  a total 
loss  of  the  subject  ensues,  and  its  value  at  the  time 
proves  to  be  only  $800,  then  the  underwriter  is 
liable  to  pay  the  latter  sum  only. 

A loss  may  be  either  total  or  constructively  total. 
A total  loss  is,  as  the  words  imply,  an  entire  de- 
struction of  the  subject  insured,  whether  it  be  the 
ship,  or  the  goods  laden  on  board.  This  may  hap- 
pen, either  by  the  subject  being  sunk,  burnt,  or 
captured  by  a public  enemy. 

In  the  case  of  a total  loss,  where  the  subject  is 
entirely  destroyed,  no  abandonment  is  necessary. 
Nor  is  it  necessary,  where  the  master,  acting  as 
agent  for  whom  it  might  concern,  has  rightfully 
made  sale  of  the  shipwrecked  property.  The  pro- 
ceeds of  such  sale  belongs  to  the  insurers,  provided 
the  master  was  justified  in  selling. 


TOTAL  LOSS  AND  ABANDONMENT. 


241 


But  the  sale  of  vessels,  abroad,  under  the  pre- 
tence of  necessity,  has  led  to  more  litigation  than 
any  other  question  arising  under  policies  of  insur- 
ance. Ship-masters  should  bear  in  mind,  that  the 
reports  made  by  surveyors,  in  foreign  ports,  which 
often  recommend  the  condemnation  and  sale  of  the 
vessel,  are,  in  fact,  no  conclusive  justification  of 
that  course.  Such  reports  are  merely  advisory, 
and  a sale  made  in  pursuance  thereof,  will  pass  no 
title  to  the  purchaser,  against  the  former  owner; 
nor  render  the  insurers  liable  for  a total  loss,  unless 
there  is  an  actual  and  urgent  necessity  for  the 
sale.* 

Even  if  the  circumstances  seem  to  be  such  as  to 
justify  an  abandonment,  it  by  no  means  follows 
that  the  master  should  sell  the  vessel.  The  insur- 
ers may  prefer  repairing  her,  at  an  expense  beyond 
that  which  the  master  may  deem  expedient.  The 
general  rule  is,  that  whenever  the  cost  of  repairing 
a vessel  will  exceed  one-half  the  sum  at  which 
she  is  valued  in  the  policy,  the  loss  is  to  be  deem- 
ed constructively  total.  Bn t the  expense  of  re- 
pairing the  vessel  must,  in  fact,  exceed  three- 
fourths  of  the  sum  at  which  she  is  valued  in  the 
policy,  in  order  to  make  out  a constructive  total 
loss  ; as  one-third  is  to  be  deducted  for  new. f 
And  none  of  the  incidental  expenses  of  supporting 
the  crew,  during  the  repairs,  and  of  proving  the 

* Winn  vs.  Col.  Ins.  Co.;  12  Pick.  249. 

21 


f Ibid. 


242 


TOTAL  LOSS  AND  ABANDONMENT. 


loss,  can  be  taken  into  view  in  making  up  the 
sum.* 

In  numerous  suits  at  law  which  have  been  tried 
in  Massachusetts,  of  late  years,  the  assured  has  fail- 
ed to  sustain  a claim  for  total  loss,  after  the  vessel 
had  been  sold  abroad. f And  in  many  more  cases, 
have  settlements  been  made  with  the  insurers, 
without  suit,  on  the  principle  of  a partial  loss,  not- 
withstanding the  sale  of  the  vessel. 

In  some  of  these  cases,  the  master  has  submitted 
to  a sale  of  the  vessel,  under  a mistaken  impression 
that  it  was  his  imperative  duty  to  follow  the  advice 
of  surveyors,  and  in  others  it  has  appeared  probable 
that  the  master  himself  prompted  the  condemna- 
tion, from  a desire  to  benefit  his  owners,  thinking 
that  the  surveyor’s  report  would  justify  his  acts, 
and  the  vessel  be  well  disposed  of  at  the  sum  in- 
sured. 

Whatever  has  been  the  governing  motive  with 
the  master,  the  results  have  been  exceedingly  dis- 
astrous to  their  owners,  and  it  is  therefore  of  the 
utmost  importance  that  every  man,  who  has  the 
command  of  a vessel,  should  be  aware  that  he  is 
bound,  in  case  of  accident,  to  do  with  her  as  a pru- 
dent man  would  were  she  his  own  property,  and 
wholly  unprotected  by  insurance.  This  is  the 
only  safe,  general  rule.J 

* Hall  vs.  Ocean  Ins.  Co.,  21  Pick.  472. 

f Winn  vs.  Col.  Ins.  Co.,  12  Pick.  279.  Hall  vs.  Ocean  Ins.  Co., 
21  Pick.  472.  Orrok  vs.  Com.  Ins.  Co.,  21  Pick  456.  Hall  vs. 
Franklin-  Ins.  Co.,  9 Pick.  466. 

$ Gordon  vs.  M.  F.  and  M.  Ins.  Co.,  2 Pick.  249. 


TOTAL  LOSS  AND  ABANDONMENT. 


243 


A capture  of  the  vessel  by  a hostile  enemy,  or 
her  detention,  so  as  to  deprive  the  owner  of  her  use 
and  enjoyment,  constitutes  a total  loss  within  the 
meaning  of  the  policy.  But  here  an  abandonment 
is  necessary  before  the  owner  can  recover  for  a to- 
tal loss. 

If  the  vessel  is  not  heard  from  for  a long  time,  she 
is  considered  to  be  totally  lost  by  perils  of  the  seas. 
In  the  case  of  a vessel  that  sailed  from  North  Caroli- 
na for  New  York  and  was  not  afterwards  heard  from, 
Chief  Justice  Kent  said,  “ that  after  the  laspe  of  a 
year,  considering  the  voyage,  the  presumption  that 
the  vessel  had  perished,  was  reasonable. 

Constructive  total  loss.  A technical  or  construc- 
tive total  loss  may  occur  without  the  entire  destruc- 
tion of  the  property,  or  by  its  capture  or  detention. 
The  question  as  to  what  degree  of  damage,  short  of 
shipwreck,  and  what  degree  of  restraint,  short  of 
capture,  or  the  forcible  detention  of  the  ship,  come 
within  the  principles  of  abandonment,  has  been  the 
subject  of  much  discussion. 

Where  any  part  of  the  property  has  been  saved, 
the  assured  cannot  recover,  as  for  a total  loss,  un- 
less he  abandon.  So  in  case  of  capture,  before  con- 
demnation, an  abandonment  is  necessary. f 

An  abandonment  is  an  act  on  the  part  of  the  as- 
sured, by  which  he  relinquishes  and  transfers  to 
the  underwriters  his  insurable  interest,  as  far  as  it 


* Phillips,  384. 


t 1 Term  R.  60S. 


244 


TOTAL  LOSS  AND  ABANDONMENT. 


is  a subject  of  the  policy,  or  the  proceeds  of  it,  or 
the  claims  arising  from  it. 

No  particular  form  is  necessary  to  make  a valid 
abandonment.  It  is  not  indispensably  necessary 
that  it  should  be  in  writing.  But  in  whatever 
form  it  is  made,  it  ought  to  be  explicit , without 
any  reservation  whatever.  The  assured  must 
yield  up  to  the  underwriter,  all  his  right,  title,  and 
interest  in  the  subject  insured ; for  the  abandon- 
ment, when  made,  operates  as  a transfer  of  the 
property  to  the  underwriter,  and  gives  him  a title 
to  it,  or  what  remains  of  it,  as  far  as  it  was  cover- 
ed by  the  policy.* 

But  in  making  an  abandonment,  it  would  be 
well  for  the  assured  to  make  use  of  the  word 
“abandon,”  because  that  is  a technical  word,  and 
leaves  no  doubt  as  to  its  meaning.  The  accident, 
occasioning  the  abandonment,  should  be  described 
with  certainty.  The  insured  is  bound  by  the 
causes  of  abandonment  which  he  assigns,  and  if 
that  cause  is  insufficient,  he  cannot  avail  himself  of 
a subsequent  accident,  without  making  a new 
abandonment. f 

In  regard  to  capture,  or  restraint  of  the  ship  and 
cargo,  there  is  no  distinction  between  the  different 
subjects  of  insurance,  as  the  same  arrest  or  deten- 
tion constitutes  a total  loss  of  ship,  cargo,  and 
freight.  But  where  the  cargo  is  detained  without 


* 4 Peters,  139. 


f 1 Term  K.  181. 


TOTAL  LOSS  AND  ABANDONMENT. 


245 


the  ship,  or  the  ship  without  the  cargo,  then  the 
subject  detained , is  only  liable  to  abandonment. 

The  insured  has  a right  to  abandon  to  the  under- 
writers, immediately  on  the  capture  of  the  vessel, 
without  waiting  for  her  condemnation  ; and  even 
if  she  be  afterwards  restored,  it  does  not  affect  the 
abandonment,  if  it  was  made  before  the  restoration 
of  the  ship  by  the  captors.* 

An  embargo,  or  detention  by  a friendly  power, 
constitutes  a total  loss,  and  warrants  an  immediate 
abandonment,  f 

So,  too,  where  the  vessel  is  prevented  from  en- 
tering any  of  the  ports  mentioned  in  the  instruc- 
tions, and  compelled  to  terminate  her  voyage  at  a 
place  to  which  she  had  been  ordered  by  a vessel  of 
war,  the  voyage  is  broken  up,  and  the  assured  may 
abandon  to  the  underwriters.^; 

It  is  laid  do-wn  as  a general  rule,  that  the  assur- 
ed on  any  subject  may  abandon,  when  the  voyage 
is  broken  up,  in  respect  to  that  subject,  by  the 
perils  insured  against.  But  precisely  what  may  be 
considered  a breaking  up  of  the  voyage  is  not  so 
easy  of  explanation. 

“ The  right  of  abandonment,”  says  Mr.  Justice 
Story,  “ has  been  admitted  to  exist  where  there  is 
a forcible  dispossession  or  ouster  of  the  owner  of 
the  ship,  as  in  cases  of  capture  ; where  there  is  a 
moral  restraint,  or  detention,  which  deprives  the 

* 4Cranch,  29.  f 4 Cranch’s  R.  29.  2 Cond.  R.  13. 

X 4 Dali.  417. 

21* 


246 


TOTAL  LOSS  AND  ABANDONMENT. 


owner  of  the  free  use  of  the  ship,  as  in  case  of  em- 
bargoes, blockades , and  arrests ; where  there  is  a 
present  total  loss  of  the  physical  possession  and  use 
of  the  ship,  as  in  case  of  submersion , or  sinking  of 
the  ship  ; where  there  is  a total  loss  of  the  ship  for 
the  voyage,  as  in  case  of  shipwreck ; and,  lastly, 
where  the  injury  is  so  extensive,  that  by  reason  of  it, 
the  ship  is  useless,  and  the  making  repairs  would 
exceed  her  value.  The  right  to  abandon,  exists, 
whenever,  from  the  circumstances  of  the  case,  the 
ship,  for  all  the  useful  purposes  of  a ship  for  the 
voyage,  is,  for  the  present,  gone  from  the  control 
of  the  owner,  and  the  time  when  she  will  be  re- 
stored to  him  in  a state  to  resume  the  voyage,  is 
uncertain  or  unreasonably  distant , or  the  risk  and 
expense  are  disproportionate  to  the  expected  bene- 
fit and  objects  of  the  voyage.”* 

If  the  voyage  be  broken  up  by  a loss  of  the  car- 
go, this  does  not  give  a right  to  abandon  the  ship. 
The  underwriters  on  the  cargo  and  freight  are  an- 
swerable in  such  a case ; but  the  owner  of  the 
ship  has  suffered  no  loss,  and,  therefore,  cannot 
abandon,  and  claim  for  a total  loss.  The  insurer 
on  the  ship  has  nothing  to  do  with  the  cargo.  The 
underwriters  insure  against  loss  or  damage  to  the 
vessel,  not  the  cargo.  They  insure  her  ability  to 
perform  the  voyage,  not  that  she  shall  perform  it. 

Wreck,  or  stranding  of  the  ship.  The  most 
usual  cause  of  a technical  total  loss,  arises  from  the 


* 3 Mason,  27. 


TOTAL  LOSS  AND  ABANDONMENT. 


247 


wreck,  or  stranding  of  the  ship.  To  ascertain 
whether  or  not  a loss  is  constructively  total , two 
preliminaries  must  be  established.  First,  the  value 
of  the  subject  insured  ; and,  second,  the  amount  ol 
loss  sustained. 

Of  the  value  of  the  subject  insured.  Where  the 
ship  is  insured  under  a valued  policy,  the  value 
laid  in  the  policy  is  conclusive,  in  case  of  a total 
loss, — that  is  to  say,  if  the  loss  proves  total.  But 
in  the  preliminary  investigations  to  ascertain 
whether  or  not  the  loss  is  partial  or  total,  it  has 
been  a question  whether  the  value  in  the  policy  or 
the  actual  value  of  the  ship  at  the  time  of  the  dis- 
aster, is  to  be  taken,  to  ascertain  whether  or  not 
the  loss  is  to  the  amount  of  one-half  of  her  value. 

In  giving  an  opinion  upon  this  question,  in  the 
case  of  Peele  vs.  the  Merchants  Insurance  Com- 
pany, Mr.  Justice  Story  gave  the  opinion  of  the 
court  in  favor  of  opening  the  policy,  and  of  admit- 
ing  testimony  as  to  the  actual  value  of  the  ship, 
notwithstanding  the  policy  was  a valued  one 

Mr.  Phillips,  in  his  treatise  on  the  law  of  insur- 
ance, would  seem  to  lean  against  the  ruling  in  that 
case  ; and  from  the  acknowledged  difficulty  of 
proving  the  value  of  any  ship  at  a given  period,  the 
value  alleged  in  the  policy  might  be  expected  to 
govern,  in  every  case  where  the  valuation  was  not 
grossly  disproportionate  to  her  real  value.  In 
making  this  estimate,  the  premium  note  is  not  to 


* 3 Mason,  27. 


248 


TOTAL  LOSS  AND  ABANDONMENT. 


be  deducted  from  the  gross  amount  of  the  valua- 
tion. 

By  the  introduction  of  a special  clause  into  the 
policies  in  use  in  Massachusetts,  prompted  by  the 
above  decision,  the  difficulties  on  this  point  have 
been  much  narrowed.  The  valuation  in  the  policy 
is  prima  facie  evidence  of  her  real  value.* 

Where  the  policy  is  an  open  one,  the  value  of 
the  vessel  must  be  estimated  at  the  time  of  the 
happening  of  the  disaster,  and  not  her  value  at  the 
commencement  of  the  voyage.  But  it  is  very  un- 
usual to  insure  vessels  in  an  open  policy,  at  the 
present  time. 

Of  the  amount  of  damage.  It  is  a well  settled 
rule  of  American  Insurance  law,  that  if  a vessel  is 
damaged  by  any  of  the  perils  insured  against,  so 
that  the  necessary  repairs  to  restore  her  to  her  for- 
mer state,  and  render  her  seaworthy,  will  exceed 
three-fourths  of  her  value  before  the  disaster,  the 
owner  is  not  bound  to  repair,  but  may  abandon  as 
for  a total  loss.f 

The  injury  is  usually  spoken  of  as  an  injury  to 
more  than  half  her  value,  because,  in  estimating 
the  repairs,  one-third  of  the  amount  is  deducted  on 
the  ground  that  the  vessel  is  made  more  valuable 
by  substituting  new  materials  for  old.  Thus,  if  a 
ship  worth  $4,000,  is  so  injured  as  to  require 
$3,000  to  be  expended  in  repairs,  it  is  estimated 
that  the  new  materials  used,  will  make  the  vessel 


* 12  Pick.  279. 


f 3 Wendall,  662. 


TOTAL  LOSS  AND  ABANDONMENT. 


249 


worth  $5,000  when  repaired  : and  deducting  one- 
third  new  for  old,  the  expense  of  restoring  the  ves- 
sel to  her  former  value  will  be  $2,000,  or  one-half 
of  her  value  at  the  time  of  the  disaster.* 

Hence,  if  a vessel  valued  at  $4,000,  sustains  an 
injury  to  such  an  extent  as  to  require  $3,000  to  be 
expended  in  her  repair,  the  owner  may  abandon 
her  to  the  underwriters  and  claim  as  for  a total 
loss. 

This  is  the  rule  established  and  adhered  to  by 
the  court  of  errors  in  the  state  of  New  York,  and 
the  same  principle  seems  to  be  generally,  though 
vaguely,  admitted  in  a case  in  Pennsylvania,  re- 
ported in  the  fifth  of  Seargent  and  Rawle,  p.  501. 
Under  the  form  of  policy  used  in  Massachusetts, 
the  above  principle  is  fully  established. f 

But  Mr.  Justice  Story  held,  in  the  case  of  Peele 
vs.  The  Merchants  Insurance  Company,  that  the 
half  value  of  the  ship,  which  authorized  an  aban- 
donment, was  half  the  sum  which  the  ship  would 
be  worth  after  repairs  made.  And  to  this  opinion 
the  learned  Chancellor  Kent,  in  his  commentaries, 
evidently  leans. % 

This  latter  decision  has,  however,  been  provided 
against  by  a special  clause  in  the  Boston  policies, 
by  which  it  is  agreed,  “that  the  insured  shall  not 
have  the  right  to  abandon  the  vessel,  for  the  amount 

* 3 Wendall,  662.  f 12  Pick.  279.  21  Pick.  472. 

\ 3 Mason,  27.  Kent’s  com.  vol.  3.  p.  331. 


250 


TOTAL  LOSS  AND  ABANDONMENT. 


of  damage  merely,  unless  the  amount  which  the  in- 
surers would  be  liable  to  pay  under  an  adjustment, 
as  of  a partial  loss,  shall  exceed  half  the  amount 
insured.” 

Hence,  under  the  Boston  form  of  policies,  the 
ship  must  receive  injury  to  the  amount  of  three 
quarters  of  her  value,  to  enable  the  owner  to  aban- 
don her  to  the  underwriters,  and  claim  as  for  a total 
loss. 

The  items  of  expense  which  fall  under  the  head 
of  general  average,  such  as  wages  and  provisions  of 
the  crew,  during  the  detention  for  repairs;  and  in- 
deed none  of  the  incidental  charges  which  do  not 
go  directly  to  the  repair  of  the  damage,  are  to  be 
taken  into  view  in  making  up  the  sum  necessary 
to  justify  an  abandonment.* 

But  the  expense  of  getting  a stranded  vessel 
afloat,  or  of  raising  one  that  is  sunk,  though  not 
subject  to  a deduction  of  one-third,  may  be  reck- 
oned to  make  up  the  one-half  ot  the  value  in  the 
policy. f 

The  method  of  ascertaining  whether  or  not  a loss 
be  constructively  total,  is,  usually,  by  procuring  a 
survey  of  the  vessel,  and  an  estimate  of  the  cost  of 
repairing  her.  This  survey  should  be  made,  it  pos- 
sible, by  three,  at  least,  disinterested  and  skillful 
persons.  The  appointment  of  this  committee  of 
survey,  should,  when  convenient,  be  entrusted  to 


* 21  Pick.  472. 


f 11  Pick.  90. 


TOTAL  LOSS  AND  ABANDONMENT. 


251 


the  consul,  or  commercial  agent  of  the  port,  or  to 
some#magistrate  residing  near  the  place  of  the  dis- 
aster. 

In  the  cost  of  repairs,  is  to  be  included  the  cost 
of  the  removal  of  the  vessel  from  the  place  of  strand- 
ing, the  expense  of  working  her  into  port  for  re- 
pair, as  well  as  the  actual  expense  of  putting  the 
repairs  upon  her. 

The  estimates  in  the  survey  may  be  based  upon 
the  price  of  labor  and  materials  at  the  port  at  which 
she  may  then  lay;  or,  if  the  vessel  be  in  a situa- 
tion to  proceed  to  another  port,  not  unreasonably 
distant,  where  the  same  may  be  obtained  cheaper, 
then  they  may  be  based  upon  the  cost  of  repairing 
her  at  another  port.* 

Stranding.  When  a ship  is  stranded,  the  assur- 
ed cannot,  for  that  cause  merely,  immediately  aban- 
don. By  some  fortunate  accident,  by  the  exertions 
of  the  crew,  or  by  extraneous  assistance,  the  ship 
may  again  be  floated,  and  rendered  capable  of  pur- 
suing her  voyage.  In  such  case  the  insurers  are 
only  answerable  for  the  expenses  occasioned  by  the 
stranding.  But  undoubtedly,  when  by  the  strand- 
ing, the  voyage  is  defeated,  the  owner  may  aban- 
don. If  the  ship  be  stranded  on  a part  of  the  coast 
where  no  assistance  can  be  procured  to  get  her  off, 
or  where  there  may  be  no  materials  or  workmen  for 
repairing  the  damage  she  may  have  sustained,  or  if 
the  insurer,  upon  having  notice,  will  not  engage 


* 21  Pick.  472. 


252 


TOTAL  LOSS  AND  ABANDONMENT. 


to  pay  the  expenses  of  the  attempt  to  set  her  afloat, 
if  the  owner  should  not  succeed ; in  a cast  like 
this,  the  voyage  is  lost,  and  the  insured  may  aban- 
don.* 

A ship  may  be  driven  upon  some  of  our  beaches 
without  sustaining  essential  injury,  but  in  good 
weather  she  may  be  easily  got  off  and  repaired,  so 
as  to  prosecute  her  voyage.  In  such  case,  there  is  no 
excuse  for  saying  that  the  owner  may  immediately 
abandon,  unless  the  time  of  her  recovery  and  repair 
is  unreasonably  distant,  so  as  wholly  to  defeat  the 
voyage,  or  unless  the  insurers  refuse  to  be  answer- 
able  for  the  expense  of  the  attempt  to  float  her. 
For  in  this  case,  as  he  cannot  recover  more  than  a 
total  loss,  he  shall  not  be  holden  to  labor  for  the 
recovery  of  the  ship,  which  he  must  do  at  his  own 
expense,  if  he  should  be  unsuccessful. f 

And  where  the  stranding  is  under  such  circum- 
stances that  the  attempt  to  recover  and  repair  the 
ship,  in  a reasonable  time  for  the  prosecution  of  the 
voyage  may  be  hazardous,  but  not  hopeless  ; if  the 
underwriter  will  engage  to  pay  all  the  expenses, 
whatever  may  be  the  event,  the  owner  cannot 
abandon  until  he  has  used  such  reasonable  endeav- 
ors to  recover  his  ship,  and  has  eventually  failed.! 

If  the  underwriter  will  himself  undertake,  at  his 
own  expense,  for  the  owner,  the  recovery  of  his 
ship,  and  shall  succeed,  and  offer  to  restore  her  to 


TOTAL  LOSS  AND  ABANDONMENT. 


253 


him,  so  that  he  may  reasonably  prosecute  his  voyage, 
the  owner  cannot  abandon  ; for  neither  the  ship  nor 
the  voyage  is  lost.* 

It  is  provided  in  most  policies,  that  !<  in  case  of 
any  loss  or  misfortune,  it  shall  be  lawful  for  the  in- 
sured, his  factors,  servants,  and  assigns,  to  sue,  la- 
bor, and  travel  for,  in  and  about  the  defence,  safe- 
guard, and  recovery  of  the  said  ( subject  insured,) 
or  any  part  thereof,  without  prejudice  to  this  insur- 
ance, to  the  charges  whereof  the  said  insurance 
company  will  contribute,  in  proportion  as  the  sum 
insured  is  to  the  whole  sum  at  risk.” 

Whether  the  above  provision  would  bind  the  in- 
surers for  any  expenses  incurred  in  a fruitless  at- 
tempt to  float  a stranded  vessel.  Quere. 

If  a ship  insured  for  a given  voyage,  arrive  at  her 
port  of  destination,  and  there  remain  twenty-four 
hours  moored  in  safety ; or  if  she  be  insured  for  a 
term,  and  she  survive  the  term ; any  injury  which 
she  may  have  sustained  during  her  voyage,  in  the 
one  case,  or  during  the  term  in  the  other,  however 
great,  can  only  amount  to  a partial  loss.  The 
owner  cannot  abandon. f 

The  owner  may  always  repair,  if  he  pleases,  even 
if  the  damage  exceeds  the  half  of  the  value  of  the 
ship.J 

The  master  should  protest  against  every  disaster 
with  which  he  meets  in  the  course  of  the  voyage. 

* 6 Mass.  R.  484.  f 15  “Wendell,  458.  f 8 Johns.  244. 

22 


254 


TOTAL  LOSS  AND  ABANDONMENT. 


This  protest  must  be  made  and  sworn  to  before 
a justice  of  the  peace,  and  should  be  done  within 
twenty-four  hours  after  arriving  at  the  next  port, 
after  the  happening  of  the  disaster. 

Where  an  abandonment  is  made  by  the  insured 
to  the  underwriter,  the  protest  of  the  master,  if  it 
can  be  obtained,  is  the  usual  evidence  of  the.  loss.* 

The  master  then  should  transmit  a certified  copy 
of  his  protest,  or  the  original  itself,  where  it  can  be 
done  without  danger  to  the  owners,  in  all  cases 
where  an  abandonment  is  to  be  made  upon  the  dis- 
aster protested  against. 

An  abandonment  is  good,  or  not,  according  as 
the  facts  concerning  the  property  abandoned  justi- 
fied, or  not,  the  abandonment  at  the  time  it  was 
made.f 

An  abandonment  once  rightfully  made,  is  conclu- 
sive, and  the  rights  flowing  from  it  are  not  divested 
by  any  subsequent  events,  which  change  the  situ- 
ation of  the  property.}: 

If,  therefore,  an  abandonment  be  made  of  a 
stranded  vessel,  and  at  the  time  of  stranding  and 
survey  she  be  a proper  subject  for  abandonment, 
and  afterwards,  and  before  an  abandonment  be  ac- 
tually made,  she  floats  from  her  place  of  peril,  and 
can  be  repaired  for  less  than  one  half  of  her  value, 
the  owner  cannot  abandon. $ 

But  if  a total  loss  has  actually  taken  place  by 

* 4 Mass.  88.  f 3 Mason,  429.  4 Cranch,  29.  6 Mass.  479. 
t 3 Mason,  27.  $ 11  Pick.  90. 


TOTAL  LOSS  AND  ABANDONMENT. 


255 


capture,  or  otherwise,  and  during  the  continuance 
of  such  total  loss,  the  owner  abandons  to  the  insurer, 
he  may  recover,  although  subsequently  the  vessel 
should  be  given  up,  or  rescued  from  the  captors.* 

But  the  owner  cannot  abandon  after  the  vessel 
has  been  liberated. 

Notice  of  an  intention  to  abandon  should  be  given 
the  underwriters  within  a reasonable  time  after  the 
owner  receives  information  of  a total  loss.  Any 
unnecessary  delay  in  giving  such  notice,  will 
amount  to  a waiver  of  the  right  to  abandon,  and 
give  the  insurers  a right  to  reject  the  abandon- 
ment.! 

But  an  omission  to  abandon,  will  not  deprive  the 
assured  of  his  right  to  recover  the  actual  loss  he  has 
sustained.^ 

The  owner  should  never  buy  in,  for  his  own  ac- 
count and  benefit,  a vessel  abandoned  by  him  to 
the  underwriters,  because  it  is  considered  a waiver 
of  the  abandonment.  $ 

In  one  case  the  delay  of  a month,  and  in  anoth- 
er, 45  days,  was  considered  an  unreasonable  time 
to  delay  an  abandonment.  || 

If  an  abandonment  is  once  rightfully  made,  the 
master,  from  that  time,  is  the  agent  of  the  insurers, 
and  no  act  of  his  can  prejudice  the  rights  of  the 
owner  under  the  abandonment.  He  is  no  longer 

* 11  Pick.  90.  1 1 Mass.  R.  264  6 do.  465.  $ 2 J.  R.  138. 

§ 10  Johns.  R.  177.  3 do.  39.  ||  4 Mass.  R.  668.  6 do.  465. 


256 


TOTAL  LOSS  AND  ADJUSTMENT. 


the  servant  of  the  owner,  and  therefore  the  owner 
is  no  longer  responsible  for  his  acts.* 

Acceptance  of  an  Abandonment.  Although  an 
acceptance  may  supply  any  merely  formal  insuffi- 
ciency in  the  abandonment,  an  acceptance  is  not  in 
any  other  respect  necessary  to  its  validity  and  ef- 
fect ; the  abandonment  being  made  in  due  form, 
and  for  sufficient  cause,  it  transfers  the  subject  and 
perfects  the  assured’s  rights  to  recover  for  a total 
loss,  although  it  is  not  accepted  by  the  insurers. 

An  acceptance,  to  be  binding  upon  the  insurers, 
must  be  made  by  a person  authorized  to  accept. 
The  silence  of  the  insurer  is  no  presumption  of  an 
acceptance. 

. Chief  Justice  Parsons  decided  that  the  taking 
possession  of  the  vessel  by  the  insurers,  after  an 
abandonment,  for  the  purpose  of  recovering  and  re- 
pairing her,  was  no  acceptance  of  the  abandonment. 
Mr.  Justice  Story  leans  to  a different  opinion. f 
By  the  form  of  policy  made  use  of  by  the  Boston 
offices,  it  is  provided  “ that  the  acts  of  the  insured, 
or  insurers,  in  recovering,  saving,  and  preserving 
the  property  insured,  in  case  of  disaster,  shall  not 
be  considered  a waiver  or  acceptance  of  an  aban- 
donment.” This  healthful  provision  in  the  policy 
secures  to  each  party  to  it,  the  very  necessary  and 
highly  proper  privilege  of  rescuing  the  property 
from  destruction  after  an  abandonment,  if  it  be  in 


* 3 Mass.  238  and  417.  f 6 Mass.  581.  3 Mason,  27. 


ABANDONMENT  OF  THE  CARGO. 


257 


their  power.  It  saves  them  from  the  unnatural  and 
and  painful  necessity  of  standing  by,  and  seeing 
property  go  to  destruction,  and  barred  themselves 
from  extending  a saving  hand,  by  a most  unreason- 
able point  of  law. 

OF  THE  ABANDONMENT  OF  THE  CARGO. 

A total  loss  of  the  ship  and  an  abandonment  of 
her  is  not  necessarily  followed  by  a total  loss  of  the 
cargo.  The  whole,  or  a principal  part  of  the  car- 
go may  be  saved  and  sent  on  to  its  port  of  destina- 
tion ; or  it  may  be  accepted  by  the  merchant  at 
the  port  of  distress  ; in  either  of  which  cases  the 
assured  cannot  abandon  to  the  underwriters.* 

Where  the  vessel  meets  with  a disaster  in  the 
course  of  the  voyage,  and  puts  into  a port  of  dis- 
tress, and  the  cargo  is  there  found  to  be  damaged 
to  an  amount  exceeding  one-half  of  its  value,  the 
assured  may  abandon  it  to  the  underwriters  and 
claim  for  a total  loss.f 

It  matters  not  whether  this  loss  arises  from  the 
deterioration  of  the  goods  by  sea-water  or  other- 
wise, or  from  the  absolute  destruction  of  a portion 
of  them,  if  half  of  the  value  of  the  goods  is  lost, 
whether  by  the  destruction  of  a part  of  the  goods 
or  deterioration  in  value  of  a part  or  the  whole,  the 
assured  may  abandon. J 

Where  the  cargo  consists  partly  of  memorandum 

* 1 Johns.  335.  + 6 Pick.  R.  131.  $ Phillips,  415. 

22* 


258 


ABANDONMENT  OF  THE  CARGO. 


articles,  insured  free  from  partial  loss,  and  the 
cargo  sustains  damage,  the  damage  to  the  non 
memorandum  articles  must  exceed  half  of  the 
value  of  the  whole  cargo,  memorandum  articles 
and  all,  in  order  to  entitle  the  owner  to  abandon.* 
If  more  than  half  the  goods  insured  are  thrown 
overboard  for  the  safety  of  the  remaining  interests, 
the  owner  may  abandon  in  the  same  manner  as  if 
the  loss  was  by  inevitable  peril. f 

The  insured  is  not  authorized  to  abandon  the 
cargo,  after  its  arrival  at  the  port  of  destination, 
however  great  the  damage  may  be.J 

If  the  vessel  and  goods  are  taken  by  an  enemy, 
the  assured  may  immediately  abandon.  So,  too,  if 
they  are  embargoed  in  a foreign  port,  or  prevented 
by  blockade  from  entering  the  port  of  destination, 
it  is  a good  cause  of  abandonment. <§> 

Where  the  vessel  is  driven  into  an  intermediate 
port  in  distress,  it  does  not,  for  that  cause  merely, 
give  the  owner  of  the  cargo  a right  to  abandon. 
The  vessel’s  having  been  disabled,  does  not,  in  all 
cases,  constitute  a loss  of  the  voyage  in  respect  to 
the  cargo.  The  master  may,  in  such  case,  repair 
his  own  vessel,  if  it  can  be  done  ; or  otherwise  he 
may  hire  another,  and  if  it  is  through  his  fault  and 
negligence  that  neither  is  done,  this  does  not  give 
the  assured  any  right  of  abandonment,  since  the  in- 
surers are  not  at  the  risk  of  the  conduct  of  the  cap- 
tain in  this  respect. 

* 8 Cranch.  48.  + 2 Caines's  Cas.  324. 

% 4 Binney,  506.  Benecke,  370.  § 8 Mass.  R.  494. 


ABANDONMENT  OP  THE  CARGO.  259 

If  the  cargo  is  not  damaged  to  an  extent  exceed- 
ing one-half  of  its  value,  it  must  be  sent  on  by  the 
ship-owner,  if  the  vessel  can  be  repaired  in  a rea- 
sonable time  to  carry  it  forward  ; or,  if  another  ves- 
sel can  be  procured  at  the  port  of  distress,  or  a 
neighboring  port  to  carry  it  on  for  a price  less  than 
one-half  of  its  value,  the  master  is  bound  to  send  it 
forward.  If  in  neither  of  these  ways  the  cargo  can 
be  sent  forward  to  its  port  of  destination,  and  the 
owner  does  not  see  fit  to  accept  it  at  the  port  of 
distress,  he  may  abandon. 

If  a vessel  can  be  obtained  at  the  port  of  distress, 
or  a neighboring  port,  to  carry  on  the  cargo,  or  if 
the  vessel  can  be  repaired  within  a reasonable  time, 
so  as  to  carry  it  on,  the  assured  cannot  abandon, 
unless  the  expense  of  procuring  another  vessel 
would  exceed  half  the  value  of  the  cargo.  If  the 
master  can  procure  another  vessel  to  send  the 
cargo  forward  and  will  not , the  better  opinion  seems 
to  be  that  the  insurers  are  discharged.* 

Valuation  of  the  cargo.  The  invoice  value  of 
the  goods  must  be  taken  as  their  value  for  the  set- 
tlement of  the  question  whether  or  not  they  have 
been  injured  to  more  than  half  their  value.  In 
the  invoice  value  may  be  legally  included,  not 
only  the  prime  cost  of  the  goods,  but  also  the  ex- 
pense of  removing  them  and  lading  them  on  board, 
and  the  premium  of  insurance. f 

If  goods,  in  a port  of  distress,  are  found  to  be 
f Kent’s  Com.  vol.  3.  p.  272. 


* 9 Johns.  21. 


260 


SALVAGE. 


damaged,  and  the  question  is,  whether,  or  not,  the 
damage  exceeds  the  half  of  their  value,  it  may  be 
ascertained  in  this  way.  Ascertain,  first,  the  mar- 
ket value  of  the  goods  in  that  place,  in  a sound 
state,  and  then  ascertain  the  market  value  of  the 
goods  as  they  are  in  a damaged  state.  If  it  ap- 
pears that  they  are  deteriorated  for  that  market  to 
more  than  half  their  value,  the  merchant  may 
legally  abandon  them  to  the  underwriter,  since  the 
presumption  is  fair,  that  the  relative  proportion  be- 
tween the  value  of  sound  and  damaged  goods  will 
he  the  same  in  every  market.  For  instance,  if  the 
cargo  consists  of  coffee  and  might  have  been  sold 
at  SOs.  sound,  and  is,  in  consequence  of  its  being 
damaged,  worth  no  more  than  40s.,  the  proportion 
of  the  loss  is  one-half,  for  the  owner  is  by  the  de- 
terioration placed  in  the  same  condition,  (as  to  the 
goods  themselves,)  as  if  one-half  of  the  goods  had 
been  washed  overboard.* 

SALVAGE. 

Salvage  is  a compensation  to  those  by  whose 
assistance  a ship,  or  its  loading,  is  saved  from  im- 
pending peril,  or  rescued  from  actual  loss.  This 
service  may  either  take  place  at  sea,  or  on  the 
shore,  and  entitles  the  salvor  to  a greater  or  less 
reward,  according  to  the  circumstauces  of  the  case. 


* Benecke,  15. 


SALVAGE. 


261 


It  is  generally  from  one-third  to  one-half  of  the 
value  of  the  property  saved.  Formerly  a certain 
portion  of  the  property  was  decreed  the  salvors,  but 
now  it  is  usual  to  adjudge  them  a certain  portion  of 
the  value  of  the  property  saved,  in  money.  In  fixing 
the  rate  of  salvage,  the  court  usually  has  regard, 
not  only  to  the  labor  and  peril  incurred  by  the  sal- 
vors, but  also  to  the  situation  in  which  they  may 
happen  to  stand  with  respect  to  the  property  saved  ; 
to  the  promptitude  and  alacrity  manifested  by 
them,  and  to  the  value  of  the  ship  and  cargo,  as 
well  as  the  degree  of  danger  from  which  they 
were  rescued.  Sometimes  it  is  a matter  of  con- 
tract between  the  salvors  and  owners  as  it  respects 
their  compensation ; but  unless  it  appears  clear  to 
the  court  that  no  undue  advantage  was  taken  of 
the  situation  of  the  owners,  by  the  salvors,  they 
will  not  consider  it  binding.  Generally  the  ship's 
crew  cannot  be  the  salvors  of  their  own  vessel  or 
cargo ; but  under  certain  circumstances  the  court 
have  allowed  them  salvage.  So,  too,  with  pilots 
and  passengers. 

In  cases  of  shipwreck,  where  the  voyage,  as  to 
purposes  of  freight,  is  wholly  lost,  but  by  the  mer- 
itorious exertions  of  the  crew  the  materials  of  the 
ship  are  saved,  they  are  entitled  to  salvage  ; for  the 
loss  of  freight,  carrying  with  it  their  wages,  places 
them,  in  cases  of  extraordinary  exertion,  upon  the 


262 


SALVAGE. 


same  right  as  other  persons,  to  be  paid  a compensa- 
tion for  their  labor  done.* 

If  a vessel  in  distress  is  abandoned  at  sea  by  the 
master  and  all  the  crew,  excepting  one  man,  who 
is  left  by  accident  or  design,  he  is  discharged  from 
his  contract  as  mariner  of  that  vessel,  and  may  en- 
title himself  to  salvage.! 

An  agreement  made  in  distress  at  sea  is  void-! 

It  has  been  held  that  where  part  of  a ship’s  crew, 
with  the  mate  at  the  head,  went  on  board  a- vessel, 
quasi  derilict,  to  effect  a salvage,  the  part  of  the 
crew  who  remained  in  their  own  ship,  if  equally 
ready  to  go,  were  equally  entitled  to  the  reward. <§> 
In  case  of  shipwreck,  it  is  the  duty  of  seamen  to 
exert  themselves  to  the  utmost  to  save  as  much  as 
possible  of  the  vessel  and  cargo.  If  the  cargo  is 
saved,  and  a proportion  of  the  freight  paid  by  the 
merchant  in  respect  thereof,  it  seems  upon  princi- 
ple that  the  seamen  are  also  entitled  to  a proportion 
of  their  wages ; and  for  their  labor  in  saving  the 
cargo,  or  remains  of  the  ship,  they,  as  well  as  other 
persons,  may  be  entitled  to  a recompense  by  way 
of  salvage. || 

In  case  of  shipwreck,  although  the  contract  of 
the  sailors  is  not  at  an  end,  and  it  is  their  duty  to 
remain  and  labor  to  save  the  wreck  and  cargo,  they 
are  entitled  by  way  of  salvage  to  their  wages, 
which  form  a lien  on  the  property  saved.  Where 

* 2 Mason’s  R.  319.  f 2 Cranch  R.  240.  $ Bee  R.  138,  139. 

§ 2 Dodson  R.  132.  |1  2 Mason’s  R.  319. 


salvage- 


263 


the  danger  in  rescuing  property  from  a wreck  is 
great,  it  may  form  a claim  on  the  part  of  the  sailors 
for  compensation,  even  beyond  their  wages. J 

The  right  of  salvage  is  forfeited  by  embezzle- 
ment on  the  part  of  the  salvors  whether  in  port  or 
at  sea.f 

Spoliation,  smuggling,  and  other  gross  misconduct 
of  the  salvors  may  forfeit  all  claim  to  salvage.* 

If  property,  abandoned  by  the  master  and  crew, 
be  taken  possession  of  by  one  set  of  salvors,  a sec- 
ond set  have  no  right  to  interfere  with  them  and 
become  participators  in  the  salvage,  unless  it  ap- 
pears that  the  first  would  not  have  been  able  to  ef- 
fect the  salvage  without  their  aid. 

Where  property  was  taken  out  of  the  hands  of 
the  original  salvors,  by  a second  party,  and  it  ap- 
peared in  evidence  that  their  assistance  was  not 
needed,  salvage  was  decreed  to  the  original  salvors 
only. 

If  a vessel  belonging  to  citizens  of  the  United 
States,  be  taken  by  a foreign  enemy,  and  before 
condemnation  be  retaken  by  a public  vessel  of  the 
United  States,  the  vessel  thus  retaken  reverts  to 
its  former  owners,  they  paying  a salvage  of  one- 
eighth  of  the  value  of  the  vessel  and  cargo  to  the 
recaptors ; or  if  retaken  by  a private  vessel  of  the 
United  States,  one  sixth  of  the  value  thereof  is  al- 
lowed as  salvage. 

* 2 Mason’s  R.  319.  f 1 Sumner,  328.  f Ibid. 


264 


GENERAL  AVERAGE. 


If  public  vessels  of  the  United  States  be  retaken 
from  an  enemy,  before  condemnation,  they  revert 
in  the  United  States,  and  a salvage  is  allowed  by 
law  to  the  recaptors,  if  retaken  by  a public  vessel) 
of  one-twelfth  part,  and  if  retaken  by  a private  ves- 
sel, one-sixth  part  of  the  true  value  thereof,  as 
found  by  any  court  of  the  United  States  competent 
to  try  the  same.  And  for  the  recapture  of  a public 
armed  vessel,  or  any  goods  therein,  one  moiety  of 
the  true  value  thereof,  when  made  by  a private 
vessel  of  the  United  States,  and  one-fourth  part  of 
such  value  when  made  by  a public  armed  vessel  of 
the  United  Slates. 

OF  GENERAL  AVERAGE. 

General  average  is  a maritime  phrase.  It  is  the 
contribution  of  several  interests  to  repair  a loss  sus- 
tained for  their  general  safety.  General^  or  gross 
average,  means  a contribution  made  by  all  parties 
concerned,  whether  it  be  in  the  ship,  cargo,  or  freight, 
towards  a loss  voluntarily  sustained  by  some  of  the 
parties  in  interest  for  the  benefit  of  all. 

No  loss  can  be  a subject  of  general  average,  un- 
less two  things  concur  : — first,  that  it  be  intention- 
ally made  ; and,  second,  that  it  be  made  for  the 
general  safety  and  benefit  of  the  remaining  inter- 
ests. The  goods  must  not  be  swept  away  by  the 
violence  of  the  wind  or  waves,  for  then  the  loss 
falls  entirely  upon  the  merchant  or  his  insurer. 


GENERAL  AVERAGE. 


265 


When  goods  are  thrown  overboard  for  the  safety 
of  the  ship  and  remaining  portion  of  the  cargo,  it  is 
the  foundation  for  a general  average  claim,  and  is 
called  a jettison.  The  jettison  must  be  made  for 
sufficient  cause,  and  not  from  groundless  timidity. 
It  must  be  made  in  a case  of  extremity,  when  the 
ship  is  in  danger  of  perishing  by  the  fury  of  the 
storm,  or  is  laboring  upon  rocks  or  shallows,  or  is 
closely  pursued  by  pirates  or  enemies.  If,  when 
thus  situated,  a portion  of  the  goods  are  thrown 
overboard  as  the  price  of  safety  to  the  rest,  and  the 
ship  and  residue  of  the  cargo  be  saved  thereby, 
nothing  is  more  reasonable  than  that  they  should 
bear  their  proportion  of  the  loss.  The  doctrine  of 
general  average  is  one  of  those  rules  of  the  marine 
law  which  is  built  upon  the  plainest  principles  of 
justice,  and  it  has  accordingly  recommended  itself 
to  the  notice  and  adoption  of  all  the  commercial 
nations  of  the  world.* 

A jettison  is  only  permitted  in  cases  of  extreme 
necessity,  and  if  the  master,  in  case  of  false  alarm, 
makes  a jettison,  there  is  no  contribution.  A regu- 
lar jettison,  says  Emerigon,  is  that  which  takes 
place  with  order,  and  without  confusion,  and  is 
founded  on  previous  deliberation.  Consultation  is 
not  indispensable  previous  to  the  sacrifice.  A case 
of  imminent  danger  will  not  permit  it.  But  it  must 
appear  that  the  act  occasioning  the  loss  was  the  ef- 
fect of  judgment  and  will;  and  there  may  be  a 
* Kent,  vnl.  3,  p.  232. 

23 


266 


GENERAL  AVERAGE. 


choice  of  perils  when  there  is  no  possibility  of  safe- 
ty. There  must  be  a certain  loss,  voluntarily  in- 
curred for  the  common  benefit,  and  it  is  not  neces- 
sary that  the  vessel  should  be  exposed  to  greater 
danger  than  she  otherwise  would  have  been. 

To  avoid  an  absolute  shipwreck,  it  may  some- 
times be  necessary  to  run  the  vessel  ashore  in  a 
place  which  appears  to  be  the  least  dangerous,  and 
that  will  form  a case  of  general  average.* 

The  master  should  first  begin  the  jettison  with 
things  the  least  necessary,  the  most  weighty,  and 
of  the  least  value;  and  nothing  but  the  greatest 
extremity  would  excuse  the  master  who  should 
commence  the  jettison  with  money,  and  other  pre- 
cious parts  of  the  cargo. 

Before  contribution  takes  place,  it  must  appear 
that  the  goods  sacrificed  were  the  price  of  safety  to 
the  rest;  and  if  the  ship  be  lost,  notwithstanding 
the  jettison,  there  will  be  no  ground  for  contribu- 
tion.! But  in  such  case  the  loss  must  be  total,  so 
that  no  value  is  saved  by  means  of  the  sacrifice  ; it 
being  a well  settled  rule,  that  where  any  property 
is  saved,  contribution  is  due,  as  it  is  the  safety  of 
the  property,  and  not  of  the  voyage,  which  consti- 
tutes the  consideration  of  general  average.! 

All  damage  arising  immediately  from  jettison,  or 
other  act  of  necessity,  is  to  be  a matter  of  general 
average,  and,  therefore,  if,  in  cutting  away  a mast, 
the  cargo,  by  that  means,  be  injured,  the  damage 

* 4 Binney,  513.  f Kent,  3 vol.  234.  J 13  Peters,  S.  C.  R.  331. 


GENERAL  AVERAGE. 


267 


goes  into  general  average.  So,  if  a ship  be  injured 
by  a peril  of  the  sea,  and  be  obliged  to  go  into  port 
to  refit,  the  wages  and  provisions  of  the  crew  dur- 
ing the  detention,  constitute  the  subject  of  general 
average  according  to  the  decisions  in  New  York  and 
Massachusetts.  In  Great  Britain  and  her  dependen- 
cies, it  is  different, — no  contribution  being  allowed 
for  those  charges.  In  France  seamen’s  wages  and 
provisions  may,  under  certain  circumstances,  be  a 
subject  for  contribution.  The  usage  throughout  the 
United  States  is  to  consider  the  wages  and  provisions 
a subject  of  general  average  in  all  cases  of  voluntary 
departure  from  the  course  of  a voyage  to  repair  dama- 
ges. But  it  is  manifest  that  this,  like  all  other  subjects 
of  general  average,  is  founded  upon  the  supposition 
that  an  actual  sacrifice  has  been  voluntarily  made 
for  the  common  benefit.  It  is  equally  plain  that 
there  can  be  no  voluntary  sacrifice,  unless  the 
voyage  is  intentionally  prolonged  to  avoid  the  dan- 
ger of  keeping  the  sea  in  a crippled  vessel.  Mere 
detention,  therefore,  in  the  ordinary  course  of  the 
voyage,  is  no  sufficient  ground  for  a general  aver- 
age claim. 

If  damage  occurs  to  a ship  while  in  port,  but 
ready  for  sea,  and  she  be  thereby  detained  for  re- 
pairs, the  wages  and  provisions,  during  the  detention, 
are  not  considered  general  average,  because  the  de- 
tention is  involuntary  ; but  if  the  damage  happens 
after  she  has  broken  ground  for  the  voyage,  and  she 
puts  back  to  refit,  then  the  detention  is  deemed  vol- 


268 


CANERAL  AVERAGE. 


iintary,  and  the  wages  and  provisions  are  brought 
into  contribution.  So  if  a vessel  is  bound  to  two 
or  more  ports,  and  meets  with  a disaster  on  the  pas- 
sage towards  the  first,  but  arrives  there,  and  is 
detained  for  repairs,  the  wages  and  provisions 
during  such  detention,  are  not  general  average. 
And  again,  if  a ship  is  accidentally  stranded,  and 
afterwards  got  afloat  in  such  a condition  that  she  is 
unfit  to  proceed  on  her  voyage,  and  is  therefore 
taken  into  a neighboring  port  for  repairs,  there  is 
no  voluntary  prolongation  of  the  voyage  for  the 
common  safety,  and  consequently  the  wages  and 
provisions  are  not  a subject  for  contribution. 

The  claim  for  general  average  upon  wages  and 
provisions  begins  to  run  immediately  from  the  time 
the  ship  depaits  from  the  course  of  her  voyage,  and 
continues  until  she  is  ready  for  sea  at  the  port  of  ne- 
cessity. Formerly  it  was  held  that  the  allowance 
should  be  continued  until  the  ship  regained  the 
same  position  in  respect  to  the  completion  of  the 
voyage,  that  she  was  in  at  the  time  she  put  away. 
That  is  to  say,  if  a ship  had  performed  half  her 
voyage,  and  was  then  compelled  to  return  to  her 
port  of  departure,  the  wages  and  provisions  were 
allowed  until  the  period  when  she  had  again  com- 
pleted half  her  passage.  This  rule,  however,  for 
obvious  reasons  was  found  to  be  of  difficult  appli- 
cation ; and  it  has  now  been  long  settled,  that  the 
wages  and  provisions  shall  be  allowed  from  the 
time  the  master  determines  to  put  away  for  a port 


GENERAL  AVERAGE. 


269 


of  necessity,  until  the  vessel  shall  be  again  ready  to 
proceed  on  her  voyage ; or  until  the  voyage  is  bro- 
ken up  ; if,  as  often  happens,  the  ship  is  condemned, 
or  the  enterprise  abandoned,  at  the  port  of  neces- 
sity. 

The  rule  is  laid  down  by  Marshall  thus  : “ Where 
a ship  is  forced  to  enter  a port  to  repair  the  damage 
she  has  suffered  in  a storm,  being  unable  to  con- 
tinue her  voyage  without  apparent  risk  of  being 
lost,  the  wages  and  provisions  for  the  crew  from 
the  day  it  was  resolved  to  seek  a port  to  rejit  the 
vessel , to  the  day  of  her  departure  from  thence , &c., 
shall  be  brought  into  a general  average.”* 

Notwithstanding  the  apparent  simplicity  and 
clearness  of  this  language,  the  question  is  frequent- 
ly made,  whether  the  wages  and  provisions  ought 
to  be  allowed,  until  there  is  an  actual  departure 
from  the  course  of  the  voyage,  towards  the  port  of 
destination,  in  order  to  make  an  intermediate  port. 
For  instance,  if  a ship  meets  with  damage  near  the 
Cape  of  Good  Hope , being  bound  to  Boston,  and 
the  master  immediately  determines  to  put  into  St. 
Helena , it  is  contended  that  the  course  of  the  ves- 
sel towards  Boston  will,  generally,  carry  her  in 
sight  of  the  island,  and  therefore  that  there  can  be 
no  practical  putting  away  or  departure  from  the 
course  of  the  voyage  to  go  into  St.  Helena,  until 
the  ship  has  sailed  several  hundred  miles  on  her 
regular  track.  Hence  it  is  argued  that  the  allow- 
* Marshall,  book  1,  chap.  13,  sec.  7. 

23* 


270 


GENERAL  AVERAGE. 


ance  for  wages  and  provisions  should  not  commence 
until  the  ship  turns  off  to  put  into  Jamestown, 
which  would  probably  be  the  very  day  she  would 
arrive  there.  There  is  much  force  in  this  argu- 
ment, and  it  is  conformable  to  the  views  of  many 
of  the  most  intelligent  and  liberal  underwriters  in 
Boston  ; but,  on  the  other  hand,  it  may  be  said,  that 
the  abrogation  of  the  ancient  rule,  which  continued 
the  allowance  until  the  ship  regained  her  former 
position,  and  the  adoption  of  that  cited  from  Mar- 
shall should  be  deemed  a kind  of  compromise,  and 
that  the  latter  should  be  as  strictly  enforced  for  the 
advantage  of  the  ship  owner,  as  it  would  be  against 
him,  under  different  circumstances.  Let  it  be  sup- 
posed that  the  ship  met  with  the  disaster,  as  far  this 
side  of  St.  Helena,  as  the  Cape  of  Good  Hope  is  on 
the  other,  and  was  compelled  by  the  course  of  the 
winds  to  return  to  that  island  ; then  it  would  be  ob- 
vious that  the  wages  and  provisions  during  the  time 
she  was  proceeding  again  on  the  homeward  voyage, 
until  she  reached  her  former  position,  would  be  sac- 
rificed for  the  common  benefit,  yet  the  rule  laid 
down  by  Marshall,  and  practically  applied  in  all 
cases,  would  exclude  any  allowance  beyond  the 
day  she  was  ready  for  sea  at  St.  Helena. 

Where  the  general  safety  requires  a ship  to  go 
into  port  to  refit,  by  reason  of  some  peril,  not  only 
the  wages  and  provisions  of  the  crew,  but  the  other 
necessary  expenses  of  going  into  port  and  of  pre- 
paring for  refitting  the  ship,  by  unloading,  ware- 


GENERAL  AVERAGE. 


271 


housing,  and  reloading  the  cargo,  are  general  aver- 
age.* In  these  expenses  may  be  included  port 
charges,  pilotage,  light  money,  unloading  and  re- 
loading the  cargo,  coopering  casks  when  rendered 
necessary  by  the  unloading  of  the  cargo,  storage, 
hire  of  anchors,  cables,  or  boats  ; wages  of  people 
employed  to  guard  the  property,  or  to  cut  the  ice  in 
order  to  get  the  ship  into,  or  out  of  port,  brokerage, 
postage,  fees  of  notaries  for  protests,  &c.;  and  in 
general  all  the  expenses  incidental  to  the  interrup- 
tion of  the  voyage  for  the  general  safety. f 

The  costs  of  the  repairs,  so  far  as  they  accrue  to 
the  ship  alone  as  a benefit,  and  would  have  been 
necessary  in  that  port  on  account  of  the  ship  alone, 
are  not  average.  Yet,  if  the  expense  of  the  repairs 
would  not  have  been  incurred  but  for -the  benefit  of 
the  cargo,  and  might  have  been  defered  with  safety 
to  the  ship,  to  a less  costly  port,  such  extra  expense 
is  general  average.t 

If  part  of  the  cargo  be  voluntarily  delivered  up 
to  a pirate  or  an  enemy,  by  way  of  ransom  or  con- 
tribution, and  to  induce  them  to  spare  the  vessel 
and  residue  of  the  goods,  the  property  saved  must 
contribute  to  the  loss,  as  being  the  price  of  safety 
to  the  rest.  The  expense,  also,  of  unlading  the 
goods  to  repair  damages  to  the  ship,  or  to  lighten 
her  when  grounded,  must  be  sustained  by  general 
contribution  ; for  all  the  parties  concerned  are  in- 
terested in  the  measures  requisite  for  the  prosecu- 
f Phillips,  347.  J 7 Pick.  259. 


* 2 Pick.  8. 


272 


GENERAL  AVERAGE. 


tion  of  the  voyage.  If  the  masts,  cables,  and  other 
equipments  of  the  vessel  be  cut  away,  to  save  her 
in  a case  of  extremity,  their  value  must  be  made 
good  by  contribution.  All  casual  and  inevitable 
damage  and  loss,  as  distinguished  from  that  which 
is  purposely  incurred,  is  the  subject  of  particular. 
and  not  of  general  average.* 

If  the  ship  be  voluntarily  stranded  to  escape 
danger  from  tempests,  or  the  chase  of  an  enemy, 
the  damages  resulting  from  that  act  are  to  be  borne 
as  general  average,  if  the  ship  be  afterwards  recov- 
ered and  perform  her  voyage.  But  if  the  ship  be 
Avholly  lost  or  destroyed,  by  the  act  of  running  her 
ashore,  it  has  been  a question  much  discussed  and 
different  opinions  entertained,  whether  the  cargo 
saved  was  bound  to  contribute  to  bear  the  loss  of 
the  ship.  But  the  question  was  elaborately  consid- 
ered by  the  supreme  court  of  the  United  States  in 
the  ease  of  the  Columbian  Insurance  Company, 
plaintiffs  in  error,  vs.  Stribling,  et  al.  13  Peters,  331, 
in  which  the  whole  doctrine  of  general  average 
was  fully  discussed,  and  the  total  loss  of  the  ship 
by  such  voluntary  stranding  was  held  to  be  the 
subject  of  contribution. 

A temporary  safety  is  all  that  is  requisite  to  en- 
title the  owners  of  the  property  sacrificed  to  con- 
tribution ; and  if  the  ship  survives  the  disaster,  and 
he  afterwards  lost  by  another,  still  the  goods  saved, 
in  the  second  disaster,  must  be  contributory  to  the 
* Kent,  vol.  3,  p.  23S. 


GENERAL  AVERAGE. 


273 


original  loss,  for  without  that  loss  they  would  have 
been  totally  destroyed. 

Goods  shipped  on  deck  contribute  if  saved,  but 
if  lost  by  jettison,  they  are  not  entitled  to  the  bene- 
fit of  general  average  ; for  they,  by  their  situation, 
increase  the  difficulty  of  the  navigation,  and  are 
peculiarly  exposed  to  peril.* 

There  is  much  diversity  of  practice  among  those 
whose  profession  it  is  to  adjust  averages  in  this 
country.  In  several  of  our  principal  ports  there  are 
usages  strictly  local.  The  establishment  of  a uni- 
form system  would  prove  highly  beneficial  to  the 
commercial  interests,  and  is,  therefore,  very  desira- 
ble ; but  it  will  not  be  accomplished,  probably,  un- 
til Congress  shall  deem  it  expedient,  under  their 
constitutional  power  to  regulate  commerce,  to 
establish  a code  after  the  manner  of  the  French 
ordinance  of  the  marine. 

At  present  the  rule  in  New  York  is  to  allow 
thirty  cents  a day  for  the  wages  of  the  crew  during 
a voluntary  detention  for  repairs,  and  in  some  of 
the  southern  ports  thirty-three  cents  per  day  is  al- 
lowed. In  Boston  the  allowance  is  twenty-five 
cents  per  day.  In  New  York  the  rule  is  to  take 
one-half  of  the  gross  freight,  and  four-fifths  of  the 
sum  at  which  the  vessel  may  be  valued  in  the  pol- 
icy, as  the  contributory  value  of  those  interests.  In 
Boston  two-thirds  of  the  freight  and  the  actual 
value  of  the  vessel  are  taken.  In  Philadelphia  the 
* Kent.  vqI.  3,  p.  239, 


274 


GENERAL  AVERAGE. 


rule  is  to  deduct  one-third  for  new,  from  the  gross 
amount  of  repairs,  and  then  to  deduct  the  proceeds 
of  the  old  materials  from  the  remainder.  In  Bos- 
ton and  New  York,  the  proceeds  of  the  old  mate- 
rials are  first  deducted,  and  then  one-third  of  the 
remainder  for  new.  In  New  York  it  is  usual  to 
allow  in  general  average  a commission  of  two  and 
one-half  per  cent  for  collecting  it.  In  Boston,  such 
an  allowance  is  deemed  wholly  inadmissible. 

As  a general  rule,  the  goods  sacrificed,  as  well 
as  the  goods  saved,  are  to  be  valued  at  the  clear  net 
price  they  would  have  yielded,  after  deducting 
freight  at  the  port  of  discharge  ; and  this  rule  is 
founded  on  a plain  principle  of  equity.  The  per- 
son whose  loss  has  procured  the  safe  arrival  of  the 
ship  and  cargo,  should  be  placed  on  equal  ground 
with  those  persons  whose  goods  have  safely  arrived, 
and  that  can  only  be  done  by  considering  his  goods 
to  have  also  arrived.  The  owners  of  the  ship  con- 
tribute according  to  her  value  at  the  end  of  the 
voyage,  and  according  to  the  net  amount  of  freight 
and  earnings.  The  net  amount  of  freight  is  deter- 
mined by  deducting  one-third  of  the  gross  amount 
at  risk.  This  is  an  arbitrary  rule,  analagous  to  that 
of  deducting  one-third  for  new  in  case  of  repairs. 
It  has  been  adopted  for  convenience  to  avoid  the 
necessity  of  inquiry,  in  every  case,  to  determine 
what  has  been  the  actual  net  earnings.  In  New 
York  one-half  of  the  gross  freight  is  deducted, 
leaving  a moiety  for  contribution. 


GENERAL  AVERAGE. 


275 


The  value  of  the  vessel  for  contribution  is  her 
true  worth  at  the  port  of  adjustment.  This  is  to  be 
ascertained  in  the  best  manner  that  circumstances 
will  permit.  If  she  has  been  repaired  at  a port  of 
necessity,  the  amount  of  such  repairs  must  be  de- 
ducted from  her  value  at  the  port  of  destination. 
Thus  suppose  a vessel  to  be  sold  on  her  arrival,  or 
her  value  to  be  established  by  competent  appraisers, 

at $10,000 

And  that  she  has  been  repaired  at  the 

port  of  necessity  at  an  expense  of  - 3,000 


Her  net  contributory  value  is  - $7,000 

This  rule  for  finding  the  contributory  value  is 
manifestly  the  only  correct  one,  because  the  result 
gives  the  precise  value  saved  by  the  ship-owner. 
But  as  neither  an  actual  sale,  nor  an  appraisement 
can  always  be  resorted  to  conveniently,  it  is  usual 
to  proceed  as  follows  : 

Take  the  value  in  the  policy,  assumed 
to  be  at  the  inception  of  the  contract,  $10,000 
Deduct  the  repairs  at  the 
port  of  necessity,  as- 
sumed to  be  - - $3,000 

Less  one-third,  deduction 

new  for  old,  - l,000-$2,000 

Premium,  included  in  the 
valuation,  - $500 — 2,500 


Leaving  the  contributory  value, 


$7,500 


276 


GENERAL  AVERAGE. 


But  it  often  happens  that  the  arbitrary  valuation 
in  the  policy  is  incorrect,  and  it  follows,  thereforei 
that  it  should  not  be  taken  as  an  element  to  deter- 
mine the  contributory  value,  if  the  point  can  be 
otherwise  ascertained. 

It  is  not  unfrequently  the  case  that  occasions  arise 
for  fixing  the  contributory  value  of  vessels,  which 
have  sustained  no  extraordinary  damage,  but  have 
been  running  some  time  after  the  value  in  the 
policy  was  established.  In  such  cases,  it  is  custom- 
ary to  make  an  allowance  for  deterioration,  thus: 
Suppose  the  vessel  valued  in  the  policy 

at  - - - - - - $10,000 

That  the  premium  is  - - $500 

And  that  she  has  run  a year  or 
more  without  repairs  ; allow 
for  deterioration,  say  - - 1,500 — 2,000 


Leaving  the  contributory  value,  - $8,000 

In  New  York  four-fifths  of  the  value  in  the  poli- 
cy is  taken  as  the  contributory  value  of  the  vessel, 
unless  she  has  met  with  damage,  and  undergone 
repairs  amounting  to  more  than  one-fifth  of  such 
valuation,  in  which  case  the  actual  amount  of  the 
repairs  is  deducted  in  lieu  of  the  one-fifth. 

Thus  suppose  a vessel  to  be  valued  at  $10,000 
And  a general  average  is  to  be  adjusted 
before  any  disaster  has  befallen  her, 
one-fifth  is  deducted,  - 2,000 


Leaving  her  contributory  value, 


$8,000 


GENERAL  AVERAGE. 


277 


But  suppose  she  has  run  two  years  under  the 
policy  and  is  impaired  by  wear  or  tear,  as  she  might 
well  be.  one-half,  and  an  average  then  occurs, 
still,  according  to  the  practice  in  that  port,  one- 
fifth  only  is  deducted,  and  she  contributes  on 
$>8,000. 

If,  however,  she  meets  with  damage,  and  is  re- 
paired at  an  expense  of  $>3,000,  or  of  any  sum 
above  $2,000,  then  the  amount  of  such  repairs  is 
deducted  from  her  original  valuation,  and  she  is 
made  to  contribute  on  the  balance.  This  rule  is 
manifestly  obnoxious  to  many  objections,  and  is 
recommended  only  by  its  convenience. 

In  fact,  the  inquiry  to  be  made,  in  all  cases,  is 
simply  this, — how  much  value  has  been  saved  by 
the  sacrifice  ? This  is  to  be  determined  by  reduc- 
ing the  several  interests  to  their  net  cash  prices,  at 
the  port  of  destination,  deducting  all  charges,  so  as 
to  find  how  much  more  each  party  concerned  pos- 
sesses than  he  would  have  done,  had  a total  loss 
happened.  The  value  saved  by  each  party  thus 
determined,  is  the  true  contributory  value, — and 
the  method  which  will  establish  the  fact  the  most 
clearly,  is  the  best. 

As  to  losses  of  the  equipment  of  the  ship,  such 
as  masts,  cables,  and  sails,  it  is  usual  to  deduct  one- 
third  from  the  price  of  the  new  articles;  for 
being  new,  they  will  be  of  greater  value  than  the 
articles  lost.* 

* Kent,  vol.  3,  p.  242. 

24 


278 


GENERAL  AVERAGE. 


The  doctrine  of  adjustment  underwent  a very 
full  discussion  in  Strong  vs.  The  New  York  Fire- 
man’s Insurance  Company,  and  it  was  there  declar- 
ed to  be  the  duty  of  the  master,  in  cases  proper  for 
a general  average,  to  cause  an  adjustment  to  be 
made  upon  his  arrival  at  the  port  of  destination , 
and  that  he  had  a lien  upon  the  cargo  to  enforce 
the  payment  of  the  contribution.*  This  was  shown 
to  be  the  maritime  law  of  Europe.  When  the  gen- 
eral average  is  thus  fairly  settled  in  the  foreign 
port,  according  to  the  usage  and  law  of  the  port,  it 
is  binding,  though  settled  differently  from  what 
it  would  be  in  the  home  port.  If,  however,  it 
is  not  a proper  case  for  a general  average,  and 
s a partial  loss  only,  then  this  doctrine  does  not 
apply,  and  a foreign  adjustment,  founded  in  mis- 
take, and  assuming  a case  for  general  average, 
when  none  existed,  is  not  binding. 

* 11  Johns.  R.  323.  2 Barnw.  and  Cress,  805.  3 Johns,  cases. 

170.  4 Mawle  and  Selw.  141. 


MARINE  HOSPITALS. 


279 


CHAPTER  XYI. 

MARINE  HOSPITALS. 

In  the  session  of  Congress  which  ended  in  July, 
1798,  a system  of  taxation  upon  seamen  was  adopt- 
ed, intended  for  their  temporary  relief,  when  sick 
or  disabled.  This  tax  is  twenty  cents  per  month, 
and  is  assessed  upon  all  American  seamen,  or  seamen 
employed  in  the  United  States  Merchant  service. 
By  the  aid  of  this  fund,  marine  hospitals  have  been 
erected  in  the  principal  commercial  cities  of  the 
United  States.  The  extent  of  the  relief  which 
these  Hospitals  aiford  to  that  useful  class  of  our 
citizens,  is  circumscribed  in  a great  measure  by  the 
amount  of  the  funds  collected.  As  far  as  practica- 
ble, the  expenditures  have  been  kept  within  the 
amount  of  the  collections  from  the  seamen  ; so  that 
while  tiie  government  have  the  ordering  and  dis- 
posal of  this  money,  and  the  general  direction  of  the 
several  hospitals,  it  contributes  little  or  nothing  to 
their  support.  Each  hospital  is,  in  the  main,  sup- 
ported from  the  collections  made  within  its  own 
district,  which  districts  are  designated  by  the  Pres- 
ident, or  the  Secretary  of  the  Treasury. 

The  time  has  now  arrived  when  the  government 
should  remodel  the  whole  system,  and  the  marine 
hospitals  be  placed  on  a more  liberal  footing.  The 


280 


MARINE  HOSPITALS. 


government  is  now  abundantly  able,  not  only  to 
bear  the  whole  expense  of  the  institutions  already 
established,  but  to  establish  others  at  points  where 
the  growing  interests  of  commerce  now  pressingly 
demand  them.  There  is  no  subject  more  richly 
meriting  the  attention  of  Congress  than  this,  and  it 
is  to  be  hoped  that  it  will  be  speedily  brought  be- 
fore it.  If  there  is  any  class  who  deserve  the 
watchful  and  even  tender  regard  of  the  govern- 
ment, it  is  the  mariners;  for  it  is  through  their  toils 
and  privations  that  our  country  has  been  enriched 
by  foreign  commerce,  and  their  gallantry  has  won 
for  her  imperishable  honors  in  the  memorable  en- 
gagements recorded  in  her  naval  history.  Simple 
justice  should  award  to  them,  from  their  country,  a 
warm  and  comfortable  retreat  when  overtaken  by 
sickness  or  disaster,  if  their  proverbial  thoughtless- 
ness and  improvidence,  combined  with  the  exposure 
of  their  situation,  did  not  imperiously  demand  it. 

The  marine  hospitals  of  the  United  States  are 
only  intended  for  the  temporary  relief  of  sick  and 
disabled  seamen.  Hence,  if  a seaman  be  afflicted 
with  mania , consumption,  or  any  other  kind  of  in- 
curable disorder,  he  is  not  permitted  to  partake  of 
the  benefits  of  the  hospital.  If  the  complaint  de- 
velopes  itself  as  incurable  after  the  patient  has  been 
admitted  into  the  hospital,  he  is  immediately  dis- 
charged. 

Seamen  who  are  sick  with  complaints  which  are 


MARINE  HOSPITALS. 


281 


deemed  curable,  are  not  permitted  to  remain  in  the 
hospital  for  a longer  period  than  four  months. 

When  a disabled  seaman  is  discharged  from  any 
hospital  on  account  of  having  an  incurable  disease, 
or  by  reason  of  having  exhausted  the  four  months 
allowed  for  his  stay  in  the  same,  he  is  entitled  to 
be  conveyed  by  water,  at  the  public  expense,  to  his 
place  of  nativity  or  domicil,  where  he  may  either 
obtain  the  aid  of  his  friends,  or  claim  the  protection 
of  the  place  as  a pauper. 

Terms.  No  charge  whatever  is  made  to  Ameri~ 
can  seamen  for  any  relief  afforded  by  marine  hospi- 
tals Whatever  may  be  the  circumstances  of  the 
seaman,  he  is  entitled  to  its  benefits  without  fee  or 
reward. 

Foreign  Seamen  who  are  sick,  are  admitted, 
when  it  can  with  convenience  be  done,  into  the 
various  marine  hospitals  of  the  United  States,  upon 
the  application  of  the  master  or  commander  of  the 
vessel  to  which  such  sick  seamen  belong.  Each 
seaman,  so  admitted,  is  subject  to  a charge  of 
seventy-five  cents  per  day,  for  each  day  he  remains 
in  the  hospital.  The  master  of  the  vessel  is  liable 
for  the  same. 

When  the  seamen  are  in  such  a state  of  conva- 
lesence  as  to  admit  of  it,  they  must  perform  such 
reasonable  service  as  the  surgeon  may  direct. 

All  officers  of  the  navy,  and  of  the  marines,  and 
all  seamen  and  marines  in  the  public  service  of  the 
United  States,  and  all  officers  and  seamen  in  the 
24* 


282 


MARINE  HOSPITALS. 


merchant  service,  may  be  admitted  into  the  hospital, 
whenever,  from  wounds,  sickness,  or  infirmity,  it 
may  become  necessary ; unless  the  disorder,  with 
which  they  are  visited,  is  contagious  or  malignant. 

While  the  seamen  are  receiving  the  benefits  of 
the  hospital,  they  are  not  permitted  to  leave  the 
grounds  about  the  same,  without  permission  from 
the  steward. 


APPENDIX. 


NOTICE  OF  ABANDONMENT. 

To  A.  B.,  President  of  the  Commercial  Insurance  > 
Office,  Boston.  > 

You  will  please  to  take  notice,  that  I,  C.  D.,  of  Newbury- 
port,  in  the  County  of  Essex,  merchant,  abandon  to  you  all 
my  right,  title,  interest,  property  and  claim  in  and  to  the  ship 
Roscoe  and  her  cargo,  and  every  part  and  parcel  of  them  or 
either  of  them  ; and  I demand  of  you  the  sum  often  thousand 
dollars,  by  you  underwritten  on  my  interest  in  said  ship  and 
cargo,  as  for  a total  loss  thereof.  C.  D. 

Boston,  March  1,  1839. 

Note.  No  particular  form  of  abandonment  is  necessary, 
and  even  an  abandonment  made  verbally,  if  not  objected  to,  is 
good.  It  is  best,  however,  to  use  the  word  abandon,  because 
that  is  a technical  word  adapted  to  express  the  intention  of 
the  insured.  If  the  abandonment  is  to  be  sent  abroad,  it  is 
prudent  to  have  it  made,  in  a formal  deed,  by  a conveyancer 
or  notary. 


ASSIGNMENT  of  a policy  of  insurance. 

Know  all  men  by  these  presents,  that  I,  the  within  named 
A.  B.,  for,  and  in  consideration  of  the  sum  o f fifty  d liars,  to 
me  paid  by  C.  D.  of  Sac.,  the  receipt  whereof  is  hereby  ac- 


284 


APPENDIX. 


knowledged,  have  sold,  assigned,  transfered,  and  set  over, 
and  by  these  presents  I do  absolutely  sell,  assign,  transfer  and 
set  over  to  him,  the  said  C.  D.,  all  niv  right,  property,  inter- 
est, claim  and  demand,  in  and  to  the  within  policy  of  insur- 
ance, which  have  already  arisen,  or  which  may  hereafter  arise 
thereon,  with  full  power  to  avail  himself  of  the  interest  herein 
assigned,  or  hereby  intended  to  he  assigned.  The  convey- 
ance herein  made,  and  the  powers  hereby  given  are  for  myself 
and  my  legal  representatives,  to  said  C.  D.  and  his  legal 
representatives. 

In  testimony  whereof,  I,  the  said  A.  B.,  have  hereunto  set 
my  hand  and  seal  this  second  day  of  March,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-nine. 


ASSIGNMENT  OF  A SAILOR’S  WAGES. 

To  all  persons  to  whom  these  presents  shall  come,  A.  B., 
of  &c.  [here  name  his  place  of  residence,  county,  state  and 
occupation,]  sends  greeting. 

Know  ye  that  I,  the  said  A.  B.,  for  and  in  consideration  of 
thessum  of  , in  which  I am  justly  i id  bt>  d to  C.  D., 

of  &.C.,  have  hereby  assigned,  sold,  and  set  over,  and  by  these 
presents,  1 do  hereby  assign,  sell,  and  set  over,  unto  the  said 
C.  D.,  all  such  sum  or  sums  of  money  as  are  now  due  and 
owing  to  me,  the  said  A.  B.,  for  wages  or  services  on  board 
the  ship  or  vessel  called  the  Experiment,  from  the  master  or 
owner  of  the  said  vessel,  on  board  of  which  vessel  I served  as 
a mariner  on  her  voyage  from  Boston  to  Halifax,  which  has 
recently  terminated.  And  to  enable  the  said  C.  D.  the  better 
to  recover  and  receive  the  same,  I do  hereby  appoint  him,  the 
said  C.  D.,  my  attorney  irrevocable,  with  full  power  in  my 
name,  but  at  his  charge,  to  prosecute  any  and  all  persons 
liable  therefor,  and  receive  and  recover  the  same,. and  give 
discharges  therefor. 

And  I do  covenant  with  the  said  C.  D.,  that  I have  not 
assigned  or  released  the  above  named  sum  or  sums  of  money 


APPENDIX. 


2S5 


to  any  other  person  or  persons  whatever,  and  that  I will,  at 
his  request,  and  at  his  charge,  execute  to  him  all  and  every 
further  conveyance  and  assurance  that  may  he  deemed  neces- 
sary to  enable  him  fully  to  avail  himself  of  the  benefit  of  this 
assignment. 

In  testimony  whereof,  &c. 

A.  B.  [seal.] 


LETTER  OF  ATTORNEY  FCOJI  A SAILOR  TO  1IIS  WIFE  TO 
RECEIVE  HIS  WAGES,  &C. 

I,  A.  B.,  of  &c.,  mariner,  do  constitute  and  appoint  my 
loving  wife,  C.  B.,  my  true  and  lawful  attorney,  for  me,  and 
in  my  name,  and  for  my  use,  to  ask  for,  demand,  and  receive, 
of  and  from  all  and  every  person  and  persons  whatsoever,  as 
well  all  such  sum  and  sums  of  money  as  now  are,  or  which 
shall  or  may  at  any  time  hereafter  beeome  due  and  owing  to 
me  for  wages,  from  any  >hip  or  ships  to  which  I now  do  or 
may  belong  ; as  also  all  and  other  monies  now  due,  or  to  be- 
come due  and  owing  to  me  by  any  other  ways  or  means  what- 
soever ; and  upon  non-payment  either  of  the  whole  or  of  any 
part  of  the  said  pay,  or  other  demands,  I do  hereby  authorize 
and  empower  my  said  wife  to  bring  a suit  or  suits  in  law,  in 
my  name,  for  the  recovery  thereof. 

In  witness  whereof,  I have  hereunto  set  and  affixed  my 
hand  and  seal  this  day  of,  &c.  A.  B.  [seal.] 

Signed  and  sealed  in  presence  of  us. 


assignment  of  money  due  for  freight  of  a ship. 

To  all  persons  to  whom  these  presents  shall  come,  I,  A.  B., 
of&c.,  send  greeting. 

Know  ye,  that  in  consideration  of  the  surn  of  ten  dollars, 
to  me  paid  by  C.  D.,  of  &c.,  the  receipt  whereof  is  hereby 
acknowledged,  I,  the  said  A.  B.,  have  granted,  sold,  assigned 
and  set  over,  and  I do  hereby  grant,  sell,  assign  and  set  over 
to  the  said  C.  D.,  the  one  full  and  equal  thirty-second  part  of 


286 


APPENDIX. 


all  such  sum  and  sums  of  money,  as  are  remaining  due  and 
owing  from  all  persons  lor  or  on  account  of  the  ship  Decatur, 
of  , of  the  burthen  of  about  three  hundred  tons,  0.  P. 

master,  for  the  freight,  hire  or  service  of  the  said  ship  or 
otherwise,  and  payable,  or  belonging  to  me  the  said  A.  15.,  as 
the  owner  of  the  said  thirty-second  part  of  the  said  ship, 
whereof  I am  at  this  time  the  owner:  and  all  my  right,  title, 
interest  and  property  of,  or  in  the  same: 

To  have  and  to  hold  the  same  to  the  said  C.  D.,  his  execu- 
tors, administrators,  and  assigns,  to  his  and  their  use  and  be- 
hoof forever. 

[Add  a power  of  attorney  to  collect  and  recover  the  same. 
For  form  see  “ assignment  of  sailor’s  wages.”] 

In  witness  whereof,  &c. 

Attest.  A.  B.  [seal.] 


ASSIGNMENT  OF  MONEY  DUE  FOR  FREIGHT,  &.C. 

[another  form.] 

To  all  persons  to  whom  these  presents  shall  come,  T,  A.  B., 
of  &c„,  master  of  the  good  ship  or  vessel  called  the  Morning 
Star,  send  greeting. 

Whereas  I,  the  said  A.  B.,  by  a charter  party  or  instru- 
ment, in  writing,  dated  on  the  second  of  March,  183S,  did  let 
on  freight,  to  O.  P.,  of  & c.,  the  one-half  of  the  said  ship,  on, 
and  for  a voyage  then  about  to  be  performed  by  said  ship 
from  Boston  to  Baltimore,  which  voyage  has  been  perfumed, 
for  the  sum  of  one  hundred  dollars,  which  is  now  due  and 
payable  by  said  0.  P.  to  me.  Now,  therefore,  know  ye,  &c. 
[us  before.] 


AGREEMENT  FOR  THE  FREIGHT  OF  A SHIP. 

Articles  of  agreement  made  this  second  day  of  May,  in  the 
year  eighteen  hundred  and  thirty-nine,  h tween  A.  B.,  mas- 
ter and  commander  of  the  ship  Liverpool,  o \'  Boston,  of  about 
five  hundred  tons  burthen,  now  at  the  what  fin  Charleston,  in 


APPENDIX. 


287 


the  state  of  South  Carolina , and  bound  on  a voyage  to  Bris- 
tol, in  the  kingdom  of  Great  Britain,  of  the  one  part,  and  C. 
D.,  of  saiil  Charleston,  merchant,  of  the  other  part. 

The  said  A.  B.,  lor  the  consideration  hereinafter  named, 
does  covenant  with  the  said  C.  D.,  that  the  vessel  aforesaid 
shall,  Avith  all  reasonable  expedition  and  despatch,  be  made 
ready  to  proceed  to  sea,  and  well  found,  manned  and  provided 
in  all  respects  to  undertake  a voyage  from  where  she  now 
lies,  to  Bristol  aforesaid,  anil  that  he  the  said  A.  B.  will  forth- 
with receive  on  board  the  said  vessel,  for  the  said  C.  D.,  pro- 
vided he  will  furnish  the  same,  the  goods  described  as  follows: 
[ here  enumerate  them,]  and  within  twenty  days  from  the  day 
of  the  date  hereof,  wind  and  weather  permitting,  the  said  A. 
B.  will  sail  with  the  said  vessel  for  the  said  port  of  Bristol, 
and  on  arriving  there,  the  dangers  of  the  seas  and  other  mari- 
time risks  excepted,  he  will  deliver  the  said  goods  in  the  like 
good  order  in  which  they  shall  be  received  on  board  said  ves- 
sel, to  the  said  C.  D.  or  his  assigns.  And  the  said  C.  D. 
covenants  with  the  said  A.  B.  that  he  will  forthwith  deliver, 
on  board  his  said  vessel,  to  be  transported  as  aforesaid,  the 
goods  herein  before  enumerated;  and  that  on  their  transporta* 
tion  as  aforesaid  to  the  said  port  of  Bristol,  he  will  receive  the 
same  from  on  board  the  said  vessel,  and  then  and  there  on  the 
receipt  thereof,  that  he  will  pay  to  the  said  A.  B for  the 
transportation  thereof,  the  sum  of  [here  name  the  freight  and 
primage.] 

In  witness  whereof,  &c.  [seal.] 


FORM  OF  A BOTTOMRY  BOND. 

Know  all  men  by  these  presents,  that  I,  A.  B.,  of  Boston, 
in  the  county  of  Suffolk,  in  the  commonwealth  of  Massachu- 
setts, one  of  the  United  States  of  America,  ship-master,  in 
the  sum  of  ten  thousand  dollars,  good  and  lawful  money  ol 
the  United  States,  to  be  paid  to  the  said  E.  F.,  his  executors. 


288 


APPEXD1X. 


administrators  and  assigns,  to  which  payment  well  and  truly 
to  be  made,  I do  bind  myself,  my  heirs,  executors  and  admin- 
istrators, and  every  one  of  them,  firmly  by  these  presen's. 

Sealed  with  my  seal,  and  dated  the  first  day  of  March, 
A.  D.  one  thousand  eight  hundred  and  thh  ly-txco. 

Whereas  the  above  bound  A.  B.  hath  taken  up,  and  re- 
ceived of  the  said  E.  F.  the  full  and  just  sum  of  Jive  thousand 
dollars,  which  sum  is  to  run  at  respondentia  on  the  block  and 
freight  of  the  ship  Exeter,  whereof  the  said  A.  B.  is  now 
master,  from  the  port  or  road  of  Bombay,  on  a voyage  to  the 
port  of  Boston,  having  permission  to  touch,  stay  at,  and  pro- 
ceed to  all  parts  and  places  within  the  limits  of  the  voyage,  at 
the  rate  or  premium  of  hoenty-Jive  per  cent,  for  the  voyage; 
in  consideration  whereof,  usual  risks  of  the  seas,  rivers,  ene- 
mies, fires,  pirates,  &c.,  are  to  be  on  account  of  the  said  E.  F. 
And  for  further  security  of  the  said  E.  F.,  the  said  A.  B.  doth 
by  these  presents  mortgage  and  assign  over  to  the  said  E.  F., 
his  executors,  administrators  and  assigns,  the  said  ship  Exeter 
and  her  freight,  together  with  all  her  tackle,  apparel,  &c. 
And  it  is  hereby  declared  that  the  said  ship  Exeter  and  her 
freight  are  thus  assigned  over  for  the  security  of  the  respon- 
dentia taken  up  by  the  said  A.  B.  and  shall  be  delivered  to  no 
other  use  or  purpose  whatever,  until  payment  of  this  bond  is 
first  made,  with  the  premium  that  may  become  due  thereon. 

Now  the  condition  of  this  obligation  is  such,  that  if  the 
above  bound  A.  B.,  his  executors,  or  administrators,  shall  and 
do,  well  and  truly  pay  or  cause  to  be  paid  unto  the  said  E.  F. 
his  executors,  administrators  or  assigns,  the  full  and  just  sum 
of  five  thousand  dollars,  being  the  principal  of  this  bond,  to- 
gether with  the  premium  which  shall  become  due  thereupon, 
at  or  before  the  expiration  of  ninety  days  after  the  safe  ar- 
rival of  the  ship  Exeter  at  her  moorings  in  the  port  of  Boston, 
or  in  case  of  the  loss  of  the  said  ship  Exeter,  such  an  average 
as  by  custom  shall  have  become  due  on  the  salvage,  then  this 
obligation  to  be  void  and  of  no  effect,  otherwise  to  remain  in 
full  force  and  virtue.  Having  signed  to  three  bonds  of  the 


APPENDIX. 


289 


[seal.] 


same  tenor  and  date,  the  one  of  which  being  accomplished, 
the  other  two  to  be  void  and  of  no  effect. 

A.  B.  for  self 
and  C.  D. 

Signed,  sealed  and  delivered 
in  'presence  of  us. 

G.  H. 

J.  K. 


FORM  OF  A BOTTOMRY  BILL. 

To  all  men  to  whom  these  presents  shall  come.  I,  A.  B. 
of  Bengal,  mariner,  part  owner  and  master  of  the  ship  called 
the  Exeter,  of  the  burthen  of  five  hundred  tons  and  upwards, 
now  riding  at  anchor  in  Table  Bay,  at  the  Cape  of  Good 
Hope,  send  greeting: 

Whereas  I,  the  said  A.  B.  part-owner  and  master  of  the 
aforesaid  ship  called  the  Exeter,  now  in  prosecution  of  a 
voyage  from  Bengal  to  the  port  of  London,  having  put  into 
Table-Bay  for  the  purpose  of  procuring  provisions  and  other 
supplies  necessary  for  the  continuation  and  performance  of  the 
voyage  aforesaid,  am  at  this  time  necessitated  to  take  up,  upon 
the  adventure  of  the  said  ship  called  the  Exeter,  the  sum  o {one 
thousand  pounds  sterling  monies  of  Great  Britain,  for  setting 
the  said  ship  to  sea,  and  furnishing  provisions  and  necessaries 
for  the  said  voyage,  which  sum  C.  D.  of  the  Cape  of  Good 
Hope,  master  attendant,  hath  at  my  request  lent  unto  me; 
and  supplied  me  with,  at  the  rate  of  twelve  hundred  and  twenty 
pounds  sterling  for  the  said  one  thousand  pounds , being  at  the 
rate  of  one  hundred  and  twenty-two  pounds,  for  every  hun- 
dred pounds  advanced  as  aforesaid,  during  the  voyage  of  the 
said  ship  from  Table-Bay  to  London.  Now  know  ye,  that  I, 
the  said  A.  B.  by  these  presents,  do,  for  me,  my  executorsj 
and  administrators,  covenant  and  grant  to  and  with  the  said 
C.  D.  that  the  said  ship  shall,  with  the  first  convoy  that  shall 
offer  for  England  after  the  date  of  these  presents,  sail  and  de- 
part for  the  port  of  London,  there  to  finish  the  voyage  afore- 
said. And  I,  the  said  A.  B.  in  consideration  of  the  sum  of 
25 


290 


APPENDIX. 


one  thousand  pounds  sterling  to  me  in  hand  paid  by  the  said 

C.  D.  at  and  before  the  sealing  and  delivery  of  these  presents, 
do  hereby  hind  myself,  my  heirs,  executois  and  administra- 
tors, my  goods  and  chattels,  and  particularly  Hie  said  ship, 
the  tac'de  and  apparel  of  the  same,  and  also  the  freight  of  the 
said  ship  which  is  or  shall  become  due  for  the  aforesaid  voyage 
from  Bengal  to  the  port  of  London , to  pay  unto  the  said  C. 

D. ,h  is  executors,  administrators  or  assigns,  the  sum  of  twelve 
hundred  and  twenty  pounds  of  lawful  British  money,  within 
thirty  days  next  after  the  safe  arrival  of  the  said  ship  at  the 
port  of  London  from  the  same  intended  voyage. 

And  I,  the  said  A.  B.  do,  for  me,  my  executors  and  admin- 
istrators, covenant  and  grant  to  and  with  the  said  C.  D.,  his 
executors  and  administrators, by  these  presents,  that  I,  the  said 

A.  15.  at  the  time  of  sealing  and  delivering  of  these  presents, 
am  a true  and  lawful  part-owner  and  master  of  the  said  ship, 
and  have  power  and  authority  to  charge  and  engage  the  said 
ship  with  her  freight  as  aforesaid,  and  that  the  said  ship,  with 
her  freight,  shall  at  all  times  after  the  said  voyage,  be  liable 
and  chargeable  for  the  payment  of  the  said  twelve  hundred 
and  twenty  pounds,  according  to  the  true  intent  and  meaning 
of  these  presents. 

And  lastly,  it  is  hereby  declared  and  agreed  by  and  between 
the  said  parties  to  these  presents,  that  in  case  the  said  ship 
shall  be  lost,  miscarry,  or  be  cast  away  before  her  arrival  at 
the  said  port  of  London  from  the  said  intended  voyage,  that 
then  the  payment  of  the  said  ticelve  hundred  and  twenty 
pounds  shall  not  be  demanded,  or  be  recoverable  by  the  said 
C.  D.,  his  executors,  administrators,  or  assigns,  but  shall  cease 
and  determine,  and  the  loss  thereby  be  wholly  borne  and  sus- 
tained by  the  said  C.  I).,  his  executors  and  administrators, 
and  that  then  and  irom  thenceforth  every  act,  matter,  and 
thing  herein  mentioned  on  the  part  and  behalf  of  the  said  A. 

B.  shall  be  void,  any  thing  herein  contained  to  the  contrary 
notwithstanding. 

In  witness  whereof  the  parties  have  interchangeably  set 


APPENDIX. 


291 


their  hands  and  seals  to  four  bonds  of  this  tenor  and  date,  one 
of  which  being'  paid,  the  others  to  be  null  anil  void. 

At  the  Cape  of  Good  Hope,  this  15th  day  of  November,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  ninety- 
seven. 

f F..  F. 

Witness,  J G.  H.  A.  R.  [seal.] 

' I.  K. 


THF.  FORM  OF  AN  INSTRUMENT  OF  HYPOTHECATION  OF 
SHIP  AND  CARGO. 

Know  all  to  whom  this  instrument  of  bond  and  bill  of  mar- 
itime risk  and  bottomry  may  come,  that  in  the  year  from  the 
birth  of  our  Lord  Jesus  Christ,  1801,  on  the  Sl.st  day  of  the 
month  o ['January,  in  the  city  of  Lisbon,  in  my  olEce  person- 
ally appeared  Jacomo  Mazzola,  captain  of  the  Imperial  ship 
called  the  Gratitudine,  whom  I know  to  be  the  real  person  ; 
and  he  declared  to  me,  the  notary,  in  the  presence  of  the  wit- 
nesses hereinafter  mentioned,  that  within  twenty-four  hours 
after  the  arrival  of  his  said  ship  at  London,  or  any  other  port, 
and  previous  to  beginning  to  make  any  delivery  of  the  cargo 
at  the  port  aforesaid,  or  any  other  port,  that  he,  the  captain, 
or  whomsoever  may  act  in  lieu  of  him,  or  in  the  case  of  his 
absence,  perform  the  duties  of  his  said  quality,  shall  or  will 
pay  hv  this  bill  of  risk,  sea  exchange,  and  bottomry,  to  Fran- 
cis Manoel  Calvert,  professed  in  the  order  of  Christ,  or  to  his 
order  the  sum  of  5.273/.  12s.  sterling,  principal  and  premium 
of  risk  and  sea  exchange,  at  the  rate  of  16  per  cent,  the  which 
principal  he  acknowledged  to  have  received  here  of  the  said 
Francis  Manoel  Calvert,  in  the  good  current  money  of  this 
kingdom,  under  the  denomination  of  true  and  legitimate 
money  of  sea  exchange  and  bottomry,  on  the  hull,  keel,  and 
appurtenances  of  the  aforesaid  ship,  and  therewith  to  supply 
the  wants  of  the  repairs,  caulking,  and  of  the  cargo  of  the 
same,  on  which  he  had  effectively  invested  ii : the  said  Cal- 
vert taking  upon  himself,  and  in  consideration  of  the  alore- 


292 


APPENDIX. 


said  premium  of  16  per  cent,  voluntarily  agreed  fir  and  set- 
tled between.them,  to  run  the  sea  risk  on  the  said  hull,  keel) 
and  appurtenances,  and  cargo  of  the  said  ship,  in  her  ensuing 
voyage,  which  the  said  captain  is  about  prosecuting  from  this 
port  of  Lisbon  to  that  of  London: — these  being  the  risks 
which  the  aforesaid  Francis  Manoel  Calvert  takes  on  himself, 
and  is  to  run,  such  as  of  the  sea,  winds,  fire,  stranding,  and 
shipwreck,  enemies,  and  false  friends,  detentions  of  princes, 
and  reprisals,  during  the  whole  of  said  voyage,  excepting  nev- 
ertheless those  of  barratry  of  the  master,  and  of  average,  as 
well  particular  as  general,  the  which  are  expressly  excluded  ; 
the  which  risk  shall  commence  to  run  from  the  hour  the  ship 
shall  heave  her  first  anchor  to  set  sail  from  this  port  to  that  of 
London,  and  shall  cease  in  twenty-four  hours  after  having 
come  to  anchor : and  for  the  ready  payment  of  the  aforesaid 
sum,  he,  the  captain,  binds  himself,  and  his  effects  in  general, 
dues  and  funds,  both  in  actual  possession  and  future,  and  by 
special  mortgage  the  cargo,  freights  due,  or  that  may  become 
due  ; and  in  case  of  failure  of  the  prompt  payment  in  due  time, 
he  binds  himself  under  this  clause  of  mortgage  to  pay  to  him 
or  his  order,  for  all  the  delay  until  full  payment,  at  and  after 
the  rate  of  six  per  cent,  per  annum;  and  there  being  also  pres- 
ent Andrew  Belucci,  mate  of  the  said  ship,  by  whom  it  was 
declared,  that  in  case  of  the  absence  of  the  aforesaid  captain,  he 
bound  himself  to  fulfil  the  contents  of  this  bond  they  thus  exe- 
cuted and  accepted,  after  these  presents  were  read  to  them,  and 
I,  the  notary  in  the  name  of  whomsoever  it  may  concern,  being 
absent ; to  all  which  tvere  witnesses  present,  Joav  Pedro 
Roeks,  who  also  acted  as  interpreter  as  well  for  the  captain  as 
for  the  mate,  he  being  there  vice-consul,  and  Manoel  Eugenio 
Coetho,  who  together  with  the  parties  signed  thereto.  J.  Joge 
de  Almeida  Rorig  the  notary  wrote  it:  Jacomo  Mazzola,  An- 
drew Bcllucci,  Joav  Pedro  Roeks,  Manoel  Eugenio  Coetho; 
and  J.  Joge  de  Almeida  Rorig,  notary  public  of  notes  in  the 
city  of  Lisbon  and  its  district  of  his  Royal  Highness  the  Prince 
Regent  our  Lord,  whom  God  preserve,  caused  this  instrument 


APPENDIX. 


293 


to  be  transcribed  from  my  book  of  notes,  to  which  I refer  my- 
self, and  have  subscribed  it,  and  signed  it  in  public  form. 

In  testimony  of  the  truth, 

JOGE  DE  ALMEIDA  RORIG. 
Whose  hand  writing  is  certified  by 

FRANCIS  ARBOUIN, 


Francis  Manoel  Calvert. 


Vice-Consul. 


FORM  OF  A RESPONDENTIA  BOND. 

Know  all  men,  &e.  [Form  the  same  as  in  the  preceding 
Bottomry  Bond.'] 

Whereas  the  above  named  E.  F.  has,  on  the  day  of  the  date 
above  written,  advanced  and  loaned  unto  the  said  A.  B.  and 
C.  D.  the  sum  o f five  thousand  dollars,  upon  the  goods,  mer- 
chandizes and  effects,  laden  and  to  be  laden  on  board  the  good 
ship  Exeter,  of  the  burden  of  300  tons  or  thereabouts,  now 
riding  at  anchor  in  the  harbor  of  Boston , outward  bound  to 
China  or  elsewhere,  and  whereof  the  said  A.  B.  is  commander. 

Now  the  condition  of  this  obligation  is  such,  that  if  the  said 
ship  or  vessel,  do  and  shall,  with  all  convenient  speed,  proceed 
and  sail  from  and  out  of  the  said  port  of  Boston,  on  a voyage 
to  any  port  or  place,  ports  or  places,  in  the  East  Indies,  China , 
Persia,  or  elsewhere  beyond  the  Cape  of  Good  Hope  and 
from  thence  do  and  shall  sail,  return  and  come  back  into  the  said 
port  of  Boston,  at  or  before  the  end  of  thirty-six  calendar  months, 
to  be  accounted  from  the  day  of  the  date  above  written,  and 
there  tr  end  her  said  intended  voyage,  (the  danger  and  casu- 
alties of  the  seas  excepted  ;)  and  if  the  said  A.  B.  and  C.  D., 
or  either  of  them,  their,  or  either  of  their  heirs,  executors,  or 
administrators,  do  and  shall  within  thirty  days  next  alter  the 
said  ship  or  vessel  shall  be  arrived  at  her  moorings  in  the  said 
port  of  Poston  from  her  said  intended  voyage  ; or  at  or  upon 
25* 


294 


APPENDIX. 


the  end  and  expiration  of  the  thirty-six  calendar  months,  to 
be  accounted  as  aforesaid,  (which  of  the  said  times  shall  first 
and  next  happen,)  well  and  truly  pay  or  cause  to  he  paid  unto 
the  said  E.  F.,  his  executors,  administrators  or  assigns,  the 
full  sum  of  six  thousand  eight  hundred  dollars,  together  with 
fifty  dollars  per  calendar  month,  for  each  and  every  calendar 
month,  and  so  proportionally  for  a greater  or  a lesser  time  than 
a calendar  month,  for  all  such  time,  and  so  many  calendar 
months  as  shall  be  elapsed,  and  run  out  of  the  said  thirty-six 
calendar  months,  over  and  above  twenty  calendar  months,  to  be 
accounted  from  the  day  of  the  date  above  written  ; or  if  in  the 
said  voyage,  and  within  the  said  thirtjr-six  calendar  months, 
to  be  accounted  as  aforesaid,  an  utter  loss  of  the  said  ship  by 
fire,  enemies,  men-of-war,  or  any  other  casualties,  shall  una- 
voidably happen,  and  the  said  A.  B.  and  C.  D.  or  either  of 
them,  their,  or  either  of  their  heirs,  executors,  or  administra- 
tors, do,  and  shall,  within  six  calendar  months  next  after  such 
loss,  well  and  truly  account  for,  (upon  oath  if  required,)  and 
pay  unto  the  said  E.  F.,  his  executors,  administrators  or  as- 
signs, a just  and  proportional  average  on  all  the  goods  and  ef- 
fects of  the  said  A.  B.  carried  from  Boston  on  hoard  the  said 
ship  or  vessel,  and  the  net  proceeds  thereof,  and  on  all  other 
goods  and  effects  which  the  said  A.  B.  shall  acquire  during  the 
said  voyage,  for  or  by  reason  of  such  goods,  merchandizes  and 
effects,  and  which  shall  not  be  unavoidably  lost ; then  the 
above  written  obligation  to  be  void  and  of  none  effect,  else  to 
stand  in  full  force  and  virtue. 


BILL  OF  EXCHANGE. 

Boston,  July  4,  1S32. 

$500. 

Ten  days  after  sight,  pay  to  the  order  of  Mr.  A.  B.,  five 
hundred  dollars,  value  received,  and  charge  the  same  without 
further  advice  to  the  account  of  C.  D. 

Messrs.  E.  F.  & Co., 

New  York. 


APPENDIX. 


295 


A SET  OF  BILLS. 

No.  344,  Ex.  £100  stg.  Boston,  July  4,  1832. 

Sixty  days  after  sig  ht,  of  this  my  first  of  exchange,  (second 
and  third  of  same  tenor  and  date  not  paid,)  pay  to  Messrs. 
A B.  &.  Co.,  or  order,  one  hundred  pounds  sterling,  value  re- 
ceived, and  charge  the  same,  without  further  advice,  to 

C.  D. 


Messrs.  E.  F.  Sc  Co., 
London. 


A SET  OF  BILLS. 

No.  344,  Ex.  £100  stg.  Boston,  July  4,  1832. 

Sixty  days  after  sight,  of  this  my  second  of  exchange,  (first 
and  third  of  the  same  tenor  and  date  not  paid,)  pay  to  Messrs. 
A.  B.  Sc  Co.,  or  order,  one  hundred  pounds  sterling,  value  re- 
ceived, and  charge  the  same,  without  further  advice,  to 

C.  D. 


Messrs.  E.  F.  Sc  Co., 
London. 


A SET  OF  BILLS. 

No.  344,  Ex.,  £100  stg.  Boston,  July  4,  1832. 

Sixty  days  after  sight,  of  this  my  third  of  exchange, 
(first  and  second  of  the  same  tenor  and  date  not  paid,)  pay  to 
Messrs.  A.  B.  Sc  Co.,  or  order,  one  hundred  pounds  sterling, 
value  received,  and  charge  the  same,  without  further  advice 
to  C.  D. 

Messrs.  E.  F.  Sc  Co., 

London. 


FORM  OF  MANIFEST  OF  CARGO. 

Report  and  manifest  of  the  cargo  laden  on  board  of  the  brig 
whereof  is  master,  which  cargo  was 

taken  on  board  at  burthen  tons, 

built  at  in  the  state  of  and  owned  by 

at  the  and  bound  for 


296 


APPENDIX, 


£ = 
— o 


I Vj 
o 
to 


c-i  3 


-r  ,ic  c 


x 


. — o 
fcc  ~ 


H o“  P-c  O £ 


If  any  articles  of  the  outward  cargo  are  brought  back,  they 
are  to  be  detailed,  specifying  by  whom  shipped  outward,  and 
to  whom  consigned  inward. 


FORM  OF  MANIFEST  OF  PASSENGERS. 


Names  of 
Passengers. 

6 

to 

Sex. 

Occupation. 

bast  place  of 
residence. 

Where  bound. 

Died  on  the 
passage. 

o 

va,  fcr 

C.  — 

? . 
% =f 

£ M s 

APPENDIX. 


297 


FORM  OF  A BILL  OF  SALE  OF  AN  ENROLLED  SHIP. 

To  all  persons  to  whom  this  present  bill  of  sale  shall  come, 
[here  insert  the  grantor's  name,  residence,  &c.] 

Send  greeting. 

Know  ye  that  I,  the  said  A.  B.,  for  and  in  consideration  of 
one  thousand  dollars  to  me  in  hand,  well  and  truly  paid,  at  or 
before  the  ensealing  and  delivery  of  these  presents,  by  C.  D., 
the  receipt  rvhereof  I do  hereby  acknowledge,  and  am  there- 
with fully  and  entirely  satisfied  and  contented,  have  granted, 
bargained  and  sold,  and  by  these  presents  do  grant,  bargain, 
and  sell  unto  the  said  C.  D.  all  the  hull  or  body  of  the  good 
ship  Mary,  together  with  all  and  singular  her  (tackle,  apparel, 
sails,  rigging,  &c.  &c.)  now  lying  in  safety  and  moored  at  the 
port  of  Boston;  the  certificate  of  whose  enrolment  is  as  fol- 
lows, to  wit: 

No.  56,  Enrolment,  in  conformity  to  an  act  of  the  Congress 
of  the  United  States  of  America,  entitled  “ an  act  for  enroling 
and  licensing  ships  or  vessels,  to  be  employed  in  the  coasting 
trade  and  fisheries,  and  for  regulating  the  same, 
having'  taken  or  subscribed  the  required  by  the  said 

act,  and  having  that  citizen  of  the 

United  States,  is  sole  owner  of  the  ship  or  vessel,  called  the 
of  whereof  is  present 

master,  and  as  he  hath  is  a citizen  of  the  United 

States,  and  that  the  said  ship  or  vessel  was  and 

having  certified  that  the  said  ship  or  vessel 
deck  and  mast  and  that  her  length  is 

her  breadth  her  depth  and  that  she  measures 

tons ; that  she  is  has  and 

head  ; and  the  said  having  agreed  to  the  de- 

scription and  admeasurement  above  specified,  and  sufficient 
security  having  been  given,  according  to  the  said  act,  the  said 
has  been  duly  enrolled  at  the  port  of 

Given  under  hand  and  seal  at  the  port  of  this 
day  of  in  the  year  one  thousand  eight  hundred 

To  have  and  to  hold,  the  said  granted  and  bargained  ship 


298 


APPENDIX. 


and  premises,  with  the  appurtenances,  unto  the  said  C.  D.,  his 
heirs,  executes,  administrators  or  assigns,  to  his  only  proper 
use,  benefit  and  behoof  forever.  And  I,  the  said  A.  B.  do 
avouch  myself  to  be  the  true  and  lawful  owner  ol  the  said 
ship  Mary  and  her  appurtenances,  and  have  in  myself  full 
power,  good  right,  and  lawful  authority  to  dispose  of  the  said 
ship  Many  and  her  appurtenances,  in  manner  as  aforesaid. 
And  fuithermo’re  I,  the  said  A.  B.,  do  furthermore  hereby 
covenant  and  agree  to  warrant  and  defend  I he  said  ship  Mary 
and  appuitenances,  against  the  lawful  c'aims  and  demands  of 
all  persons  whatsoever,  unto  him,  the  said  C.  D. 

In  witness  whereof  I,  the  said  A.  B.,  have  hereunto  set  my 
hand  and  seal  the  second  day  of  May , in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-nine. 

Signed,  sealed  and  delivered 
in  presence  of  us. 

FORM  OF  A CHARTER  PARTY. 

This  charier  party  of  affreight menl,  indented,  made,  and 
fully  concluded  upon,  tnis  second  day  of  May.  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-nine,  be- 
tween A.  15.  of  Boston,  &c.,  owner  ol  the  good  ship  Emily, 
of  the  burthen  o (three  hundred  tons,  or  thereabouts,  now  ly- 
ing in  the  harbor  of  Baltimore , whereof  C.  D.  is  at  present 
master,  on  the  one  part,  and  E.  F.  of  Baltimore,  $-c.  on  the 
other  part,  wilnesselh  : 

That  the  said  A.  B.  for  the  consideration  hereafter  men- 
tioned, hath  letten  to  freight  her,  the  aforesaid  shin  Emily, 
with  the  appurtenances  to  her  belonging,  for  a voyage  to  be 
made  by  the  said  Emily,  from  said  Baltimore  to  Boston, 
where  she  is  to  be  discharged,  (the  dangers  of  the  seas  except- 
ed ;)  and  the  sai  l A.  B.  do,  by  these  presents,  covenant  and 
agree  with  the  said  E.  F.  in  manner  following,  that  is  to  say, 
that  the  said  ship  Emily,  in  and  during  the  voyage  aforesaid, 
shall  be  tight,  staunch,  and  strong,  and  sufficiently  tackled 
and  apparelled  with  all  things  necessary  for  such  a vessel  and 


APPENDIX. 


299 


such  a voyage  ; and  that  it  shall  and  may  he  lawful  fir  the 
sai  i I1'.  F.,  his  agents  or  factors,  as  well  at  Boston  as  at 
Baltimore,  to  load  anti  put  on  hoard  the  said  Emily  loading 
of  such  goods  and  merchandize  as  they  shall  think  proper, 
contraband  goods  excepted. 

In  consideration  whereof,  the  said  F..  F.  doth,  by  these 
presents,  agree  with  the  said  A.  13.  well  and  truly  to  pay  or 
cause  to  be  paid  unto  him  in  full  lor  the  freight  or  hire 

of  l he  said  Emily,  and  appurtenances,  the  sum  o I' five  hundred 
dollars  per  month,  an!  so  in  proportion  for  a less  lime  as  the 
said  ship  Emily  shall  be  continued  in  the  aforesaid  service,  in 
ninety  days  after  her  return  to  Baltimore,  or  in  ninety  days 
after  the  said  voyage  shall  he  otherwise,  in  any  manner  what- 
soever, determined,  and  notice  thereof  to  the  said  LI.  F.  been 
duly  given. 

And  the  said  F,.  F.  doth  agree  to  pay  the  charge  of  vict  ualing 
and  manning  the  said  ship  Emily,  and  her  po:t  charges  and 
pilotage  during  said  voyage,  and  to  deliver  said  ship  on  her 
return  to  Baltimore,  to  the  owner  aforesaid  or  his  order. 

And  to  the  true  and  faithful  performance  of  all  and  singu- 
lar, the  covenants,  payments  and  agreements  aforementioned, 
each  of  the  part  ie?  aforenamed  hinds  and  obliges  himself,  his 
executors,  and  administrators  in  the  penal  sum  of 
dollars,  firmly  by  these  presents. 

In  witness  whereof  the  parties  aforesaid  have  hereunto  in- 
terchangeably set  their  hands  and  seals  the  day  and  year  above 
written. 

Signed,  sealed  and  delivered 
in  presence  of  us. 

FORM  OF  A SHIPPING  PAPER. 

It  is  agreed  between  the  master  and  seamen  or  mariners  of 
the  master, 

now  bound  from  the  port  of  for 

that,  in  consideration  of  the  monthly  or  other  wages,  against 
each  respective  seaman’s  or  mariner’s  name  hereunto  set,  they 


300 


APPENDIX. 


severally  shall  and  will  perform  the  abovementioned  voyage  ; 
and  the  said  master  doth  hereby  agree  with  and  hire  the  said 
seamen  or  mariners  for  the  said  voyage,  at  such  monthly 
wages  or  prices,  to  be  paid  pursuant  to  this  agreement  and 
the  laws  of  the  Congress  of  the  United  States  of  America,  and 
the  custom  and  usage  of  (he  port  of 

And  they,  the  said  seamen  or  mariners,  do  hereby  promise 
and  oblige  themselves  to  do  their  duty,  and  obey  the  lawful 
commands  of  their  officers  on  board  the  said  vessel,  or  on 
board  the  boats  thereunto  belonging,  as  becomes  good  and 
faithful  seamen  or  mariners  ; and  at  all  places  where  the  said 
vessel  shall  put  in,  or  anchor  at,  during  the  said  voyage,  to  do 
their  best  endeavors  for  the  preservation  of  the  said  vessel  and 
her  cargo,  and  not  to  neglect  or  refuse  doing  their  duty  by 
day  or  night,  nor  shall  go  out  of  the  said  vessel,  on  board  of  any 
other  vessel,  or  on  shore  under  any  pretence  whatsoever, 
without  leave  first  obtained  from  the  captain  or  commanding 
officer  on  board.  That  in  default  thereof  they  will  be  liable 
to  the  penalties  mentioned  in  the  act  of  Congress,  for  the  gov- 
erment  and  regulation  of  seamen  in  the  merchants’  service,  in 
which  it  is  enacted,  “ that  if  any  seaman  or  mariner  shall  ab- 
sent himself  from  on  board  the  ship  or  vessel  without  leave 
of  the  master  or  officer  commanding  on  board  ; and  the  mate 
or  other  officer  having  charge  of  the  log  book,  shall  make  en- 
try therein  of  the  name  of  such  seaman  or  mariner,  on  the 
day  on  which  he  shall  so  absent  himself  ; and  if  such  seaman 
or  mariner  shall  return  to  his  duty  within  forty-eight  hours, 
such  seaman  or  mariner  shall  forfeit  three  days’  pay,  for  every 
day  which  he  shall  so  absent  himself,  to  be  deducted  out  of 
his  wages  ; but  if  any  seaman  or  mariner  shall  absent  himself 
for  more  than  forty-eight  hours  at  one  time,  he  shall  forfeit 
all  the  wages  due  to  him,  and  all  his  goods  and  chattels  which 
were  on  board  the  said  ship  or  vessel,  or  in  any  store  where 
they  mav  have  been  lodged  at  the  time  of  his  desertion,  to  the 
the  use  of  the  owners  of  the  said  ship  or  vessel ; and  more- 
over, shall  be  liable  to  pay  to  him  or  them  all  damages  which 


APPENDIX. 


301 


he  or  they  may  susta’n  by  being  obliged  to  hire  other  seamen 
or  mariners  in  his  or  their  place. 

Jlnd  it  is  further  agreed  by  both  parties,  that  each  and 
every  lawful  command  which  the  said  master  may  think  neces- 
sary hereafter  to  issue  for  the  effectual  government  of  the  said 
vessel,  suppressing  immorality  and  vice  of  all  kinds,  be  strictly 
complied  with  under  the  penalty  of  the  person  or  persons  dis- 
obeying, forfeiting  his  or  their  whole  wages  or  hire,  together 
with  every  thing  belonging  to  them  on  board  said  vessel. 
Jlnd  it  is  further  agreed,  that  no  officer  or  seaman  belonging 
to  the  said  vessel,  shall  demand  or  be  entitled  to  his  wages, 
or  any  part  thereof,  until  the  arrival  of  the  said  vessel  at 
the  port  of  her  discharge,  and  her  cargo  delivered. 

Jlnd  it  is  further  agreed  between  the  master  and  officers  of 
the  said  vessel,  that  whatever  apparel,  furniture  and  stores, 
each  of  them  may  receive  into  their  charge,  belonging  to  said 
vessel,  shall  be  accounted  for  on  her  return;  and  in  case  any- 
thing shall  be  lost  or  damaged  through  their  carelessness  and 
insufficiency,  it  shall  be  made  good  by  such  officer  or  seaman 
by  whos.e  means  it  may  happen,  to  the  master  and  owner  of 
the  said  vessel.  And  whereas,  it  is  customary  fb r the  officers 
and  seamen  on  the  vessel’s  return  home,  in  the  harbor,  and 
while  the  vessel  is  delivering  her  cargo,  to  go  on  shore  each 
night  to  sleep,  greatly  to  the  prejudice  of  such  vessel  and 
freighters  : Be  it  further  agreed  by  the  said  parties,  that 
neither  officer  or  seamen  shall,  on  any  pretence  whatsoever, 
be  entitled  to  such  indulgence,  but  shall  do  their  duly  by  day 
in  discharge  of  her  cargo,  and  keep  such  watch  by  night  as 
the  master  shall  think  proper  to  order,  for  the  preservation  of 
the  same.  And  whereas,  it  often  happens  that  part  of  the 
cargo  is  embezzled,  after  being  safely  delivered  into  lighters  ; 
and  as  such  losses  are  made  good  by  the  owners  of  the  vessels  ; 
Be  it  therefore  agreed  by  these  presents,  that  whatever  officer 
or  seaman  the  master  shall  think  proper  to  appoint,  shall  take 
charge  of  her  cargo  in  the  lighters,  and  go  with  it  to  the  law- 
ful key,  and  there  deliver  his  charge  to  the  vessel’s  husband, 
26 


302 


APPENDIX. 


or  his  representative,  or  see  the  same  safely  landed.  • That 
each  seaman  and  mariner  who  shall  well  and  truly  perform  the 
above-mentioned  voyage,  (provided  always  that  there  be  no- 
plunderage, embezzlement,  or  other  unlawful  acts  committed 
on  the  said  vessel’s  cargo  or  stores,)  shall  he  entitled  to  the 
payment  of  the  wages  or  hire  that  may  become  due  to  him, 
pursuant  to  this  agreement,  as  to  their  names  is  severally  af- 
fixed and  set  forth. 

For  the  due  performance  of  each  and  every  of  the  above- 
s mentioned  articles  and  agreements,  and  acknowledgment  of 
their  being  voluntary  and  without  compulsion,  or  any  other 
clandestine  means  being  used,  agreed  to  and  signed  by  usj 
and  in  testimony  thereof,  we  have  each  and  every  one  of  us 
affixed  our  hands,  the  month  and  day  against  our  names  af- 
fixed, and  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and 


Time  agreed 
to  enter  on 
board  for 
duty. 

Men’s  names. 

Stations. 

Witnesses  to 
their  sign- 
ing. 

Advance 

wages. 

Wages  per 
month. 

Privilege. 

Time  of 
discharge. 
Months  and 
days  in  pay. 

Whole  wages. 

Hospital 

money. 

o 

Vi 

O 

ci 

APPENDIX. 


303 


FORM  OF  A BILL  OF  SALE  OF  A REGISTERED  SHIP. 

To  all  people  to  whom  this  present  bill  of  sale  shall  come, 
(here  insert  the  names  of  the  grantors;)  send  greeting. 

Know  ye  that  the  said  lor 

and  in  consideration  of  to 

■in  hand,  well  and  truly  paid,  at  or  before  the  ensealing  and 
delivery  of  these  presents,  by  the  receipt 

whereof  do  herereby  acknowledge,  and  therewith 

fully  and  entirely  satisfied  and  contented,  have  granted,  bar- 
gained and  sold,  and  by  these  presents  do  grant,  bargain  and 
s£ll  unto  the  said  all  the  hull  or  body  of  the 

good  together  with  all  and  singular  her 

now  lying  at  and 

at  the  port  of  the  certificate  of  whose 

registry  is  as  follows,  viz: 

In  pursuance  of  an  act  of  Congress  of  the  United  States  of 
America,  entitled  “ An  act  concerning  the  registering  and 
xecording  of  ships  or  vessels;”  having  taken  and 

subscribed  the  oath  required  by  the  said  act;  and  having 

that  only  owners  of  the  ship 

or  vessel  called  the  of  whereof 

is  at  present  master,  and  is  a citizen  of  the 
United  States,  and  that  the  said  ship  or  vessel  was 

( here  insert  where  built,  and  by  whom.)  And  ( here  insert 
the  surveyor’s  name,)  having  certified  that  the  said  ship  or 
vessel  has  deck  and  mast  : and  that  her 

length  is  ; her  breadth  ; her  depth 

; and  that  she  measures  tons;  that 

she  is  , has  and 

head  ; and  the  said  having  agreed  to  the  de- 

scription and  admeasurement  above  specified,  and  sufficient 
security  having  been  given,  according  to  the  said  act,  the  said 
has  been  duly  registered  at  the  port  of 

Given  under  hand  and  seal  at  the  port  of 

this  day  of  in  the  year  one 

thousand  eight  hundred  and 


304 


APPENDIX. 


To  have  and  to  hold  the  said  granted  and  bargained  and 
premises,  with  all  the  appurtenances,  unto  the  said 
heirs,  executors,  administrators  or  assigns,  to  only 

proper  use,  benefit  and  behoof  forever.  Aud  the  said 

do  avouch  to  be  the  true  and 

lawful  owner  of  the  said  and  her  appurte- 
nances, and  have  in  full  power,  good  right,  and 

lawful  authority  to  dispose  of  the  said  and  her 

appurtenances,  in  manner  as  aforesaid.  And  furthermore, 
the  said  do  hereby  cove- 

nant and  agree  to  warrant  and  defend  the  said 

and  appurtenances,  against  the  lawful  claims 
and  demands  of  all  persons  whatsoever,  unto  the 

said 

In  witness  whereof  the  said  ha 

hereunto  set  hand  and  seal  the  day 

of  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and 

Signed,  sealed  and  delivered 
in  presence  of  us. 

PROTEST. 

Note.  It  is  usual  for  ship-masters  immediately  after  arriving 
in  port  from  a foreign  voyage,  to  enter  a general  protest,  to  be  ex- 
tended upon  afterwards.  Where  practicable,  it  should  be  before  a 
notary  public.  This  he  does,  whether  he  is  aware  of  having  sus- 
tained any  damage  from  perils  of  the  sea,  or  not.  If,  afterwards, 
either  at  that  port,  or  at  any  other,  he  finds  that  the  ship  or  cargo 
did  sustain  damage  from  such  perils,  while  on  the  passage,  he 
may  then  extend  upon  his  general  protest;  the  form  of  which  is 
given  below. 

FORM  OF  PROTEST. 

United  States  of  America: 

Stale  of  Virginia,  District  of  Norfolk. 

To  all  to  whom  these  presents  doth,  shall  or  may  concern: 

I,  Henry  H.  Dentzel,  of  the  borough  of  Norfolk,  in  the 


APPENDIX. 


305 


state  of  Virginia,  a public  notary,  under  the  great  seal  of  the 
state,  commissioned  and  duly  qualified,  send  greeting: 

Know  ye,  that  on  the  second  day  of  September,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty-nine,  before 
me,  the  said  notary,  appeared  Browning  O.  Killy,  3d,  master 
of  the  schooner  Mercy,  of  Dartmouth,  of  the  burthen  ofrn'ne- 
ty-nine  tons,  or  thereabouts,  and  noted  in  due  form  of  law, 
with  me,  the  said  notary,  his  protest,  for  the  uses  and  purpo- 
ses hereafter  mentioned:  and  now  at  this  day,  to  wit,  the  day 
of  the  date  hereof,  again  comes  the  said  Browning  O.  Killy, 
3d,  before  the  said  notary,  at  Norfolk  aforesaid,  and  requires 
me  to  extend  his  protest ; and  together  with  the  said  Broxcn- 
ing  O.  Killy,  3d,  also  came  James  Dali,  mate,  and  Collins  W. 
Smith  and  Elias  Russel,  seamen,  of  and  belonging  to  the  said 
schooner,  all  of  whom  being  by  me  duly  sworn  on  the  holy 
Evangelists  of  Almighty  God,  did  severally  declare  and  depose 
as  follows:  That  is  to  say,  that  on  the  twenty-sixth  day  of 
August  last,  he,  the  said  Browning  O.  Killy',  3d,  set  sail  and 
departed  in  and  with  the  said  schooner,  as  master  thereof,  from 
the  port  of  Nexc  Bedford,  having  on  hoard  the  said  schooner 
a cargo  of  Oil,  Candles,  and  Nails,  bound  to  Norfolk.  That 
the  said  schooner  was  then  tight,  staunch  and  strong,  had  her 
cargo  well  and  sufficiently  stowed  and  secured,  and  was  well 
masted,  manned,  tackled,  victualed,  apparelled  and  appointed, 
and  was,  in  every  respect,  fit  for  sea  and  the  voyage  she  was 
about  to  undertake ; that  on  tfie  day  of  their  departure  the 
breezes  were 

(Here  follows  a general  narrative  (if  deemed  necessary,)  of 
the  course  of  events  on  the  voyage,  up  to  the  time  of  the  dis- 
aster, with  a particular  statement  ol  the  several  losses  and  in- 
juries sustained,  with  the  causes  thereof  fully  and  particularly 
set  forth.) 

And  the  said  appearers  further  say,  that  as  all  the  damage 
and  injury  which  already  has,  or  may  hereafter  appear  to  have 
happened  or  accrued  to  the  said  schooner,  or  her  said  cargo, 
has  been  occasioned  solely  by  the  circumstances  hereinbefore 
stated,  and  cannot,  nor  ought  not  to  be  attributed  to  any  in- 


306 


.APPEXDIX. 


sufficiency  of  the  said  schooner,  or  default  of  hkn,  this  depo- 
nent, his  officer  or  crew.  He  now  requires  me,  the  said  nota- 
ry, to  make  his  protest  and  this  public  act  thereof,  that  the 
same  may  serve  and  be  of  full  force  and  value  as  of  right  shall 
appertain.  And  therefore  the  said  Browning  O.  Killy,  3d, 
doth  protest,  and  F,  the  said  notary,  at  his  special  instance  and 
request  do,  by  these  presents,  publicly  and  solemnly  protest 
against  winds,  weulhers,  gales,  seas  and  leaks,  against  all  per- 
sons whom  it  doth,  shall,  or  may  concern,  and  against  all  and 
every  accident,  matter  and  thing,  had  and  met  with  as  afore- 
said, whereby,  or  by  means  whereof,  the  said  schooner  or  her 
cargo,  have  received,  or  hereafter  shall  have  appeared  to  have 
suffered  or  sustained  damage  or  injury — for  all  losses,  costs, 
charges,  expenses,  damages  and  injury  which  the  said  Broxcn- 
dng  0.  Killy,  3d,  ot  the  owner  or  owners  of  the  said  schooner, 
or  the  owners,  freighters  or  shippers  of  the  said  cargo,  already 
have,  or  may  hereafter  pay,  sustain,  incur,  or  be  put  into  by, 
or  on  account  of  the  premises,  or  for  which  the  insurer  or  in- 
surers is,  or  are  respectively  liable  to  pay,  or  make  contribu- 
tion or  average,  according  to  custom,  or  their  respective  con- 
tracts or  obligations,  and  that  no  part  of  such  losses  and  ex- 
penses already  incurred,  or  hereafter  to  be  incurred,  do  fall  on 
him,  the  said  Browning  O.  Killy,  3d,  his  officers  or  crew. 

Thus  done  and  protested,  in  the  borough  of  Norfolk,  and 
state  of  Virginia,  this  seventh  day  of  September,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-nine. 

In  testimony  whereof,  I have  caused  the  said  applicants  to 
sign  these  presents,  and  I,  the  said  notary,  have  subscribed 
my  name,  and  have  also  caused  my  seal  of  office  to  be  here- 
>unto  affixed,  the  day  and  year  last  above  written. 

HENRY  H.  DENTZEL, 
Browning  0.  Killy,  3d,  Notary  Public. 

James  Dali, 

Collins  TV.  Smith, 

Elias  Russell. 


Date  Due 


34 

CALL  NUMBER 

Sa 

i 

ant/n 

2 

A 1 

347 

• 7 S271M 

Vol. 


Date  (for  periodical) 


Copy  No. 


25746  6 


